Court of Appeals Reaffirms that Deference Is Alive and Well When It Comes to Substantive Requirements of SEQRA EISs

Sometimes, however, lower courts give lip service to the deferential standard of review but fail to apply it, wading into technical debates and disputes and thereby creating substantial uncertainty with regard to agency approvals of both governmental and private projects. In December 2017, the New York State Court of Appeals re-affirmed its well-established precedent in its unanimous decision in Friends of P.S. 163 Inc. v. Jewish Home Lifecare, Manhattan, 30 N.Y.3d 416 (2017). The case relates to the construction of a new nursing home facility on an undeveloped lot on the Upper West Side of Manhattan. The issues at stake in this case — what standards should a lead agency use and the degree of analysis required for specific mitigation measures considered in an Environmental Impact Statement (EIS) — speak to two major substantive questions that regularly arise in the environmental review process.

Background

SEQRA, enacted in 1975 and modeled on NEPA, requires state agencies to assess potential environmental impacts of any of their discretionary decisions. N.Y. Env. Conservation L. §8-0101, et seq. The statute and its attendant regulations provide a process for the agency with discretionary authority — known as the “lead agency” — to determine first whether a given action “may have a significant impact on the environment,” requiring the preparation of an EIS. The EIS then prepared must identify all relevant areas of environmental impacts and provide sufficient information for the lead agency to accurately assess the potential impact of a project prior to making its decision. Unlike NEPA, which simply requires the analysis of environmental impacts, SEQRA requires the agency to “act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects.” N.Y. Env. Conservation L. §8-0109 (1). Some commentators thus interpret SEQRA as imposing a substantive requirement to mitigate environmental impacts that is absent in NEPA; however, the substantive requirement to minimize or avoid adverse environmental impacts is softened by the agency balancing of such impacts against “social, economic and other essential considerations” permitted under the statute. SEQRA's procedures provide substantial opportunities for public input, ensuring that all potential environmental concerns are addressed. N.Y. Env. Conservation L. §8-0109 (5). In addition, for actions undertaken in New York City, the New York City Law Department's City Environmental Quality Review (CEQR) Technical Manual provides detailed technical guidance as to how specific environmental impacts should be assessed in the unique environment of a city of over 8 million people.

Procedural History

Petitioners here argued that the New York State Department of Health (DOH), the lead agency charged with complying with the SEQRA process, failed to do so in its preparation of an EIS, which was prepared in accordance with the CEQR Technical Manual. In December 2015, the Supreme Court found that “[a]lthough the record indicates that DOH followed proper SEQRA procedures … DOH, … did not take the requisite hard look at specific environmental issues.” 51 Misc. 3d 1225(A) at 20. Specifically, the court asserted that DOH improperly relied on the CEQR Technical Manual's standards relating to temporary construction noise impacts and did not properly account for potential lead impacts when it utilized the National Ambient Air Quality Standards (NAAQs) for airborne lead during project construction. Id. at 20. Additionally, the court found that the EIS did not adequately assess additional measures to mitigate construction impacts, namely central air conditioning as an alternate source of ventilation in conjunction with the installation of noise attenuating windows and tenting of the project site to prevent migration of lead-containing dust. Id.

The Appellate Division reversed. Noting SEQRA's deferential standard of review, the appellate court held that the lower court had “erroneously 'substituted its analysis for the expertise of the lead agency' simply because the agency rejected what the court considered to be better measures in mitigation.” 146 A.D.3d 576, 580-581.

Decision of the Court of Appeals

In its unanimous opinion, the Court of Appeals affirmed the decision of the Appellate Division, finding that “DOH took the requisite ''hard look' at [relevant areas of environmental concern] and made a 'reasoned elaboration' of the basis for its determination.'” 30 N.Y.3d at 427-428 (2017). Writing for the court, Judge Jenny Rivera found that it was not unreasonable for DOH to rely on either the NAAQs or the CEQR Technical Manual standards in reaching its conclusions and that it had acted “within its 'considerable latitude in evaluating environmental effects and choosing among alternatives.'” Id. at 431 (2017). “Petitioners may have preferred DOH to adopt a different standard, but we cannot say DOH's determination “was affected by an error of law or was arbitrary and capricious or an abuse of discretion” Id.