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Summary of Developments Under New York's Environmental Quality Act
The courts issued 41 decisions in 2017 under the New York State Environmental Quality Review Act (SEQRA), and changes were made to regulations themselves this year. We will summarize here the most important of these cases and regulation changes, and the patterns they represent.
Regulation Changes
The most important SEQRA development in several years occurred on June 28, 2018, when the Department of Environmental Conservation (DEC) adopted the first major revisions to its SEQRA regulations in 20 years. The revisions, which have been in the works since at least 2012, do not amount to the comprehensive streamlining that some had hoped for or the gutting that some had feared. They make the scoping process mandatory (though it already is in New York City). They also expand the Type II list-the list of kinds of actions that never require an environmental impact statement (EIS). Among the new items on the list:
- Green infrastructure upgrades or retrofits;
- Installation of solar arrays on closed landfills, cleaned-up brownfield sites, wastewater treatment facilities, and sites zoned for industrial use, or solar canopies on residential and commercial parking facilities;
- Installation of solar arrays on an existing structure not listed on the National or State Register of Historic Places;
- Reuse of a residential or commercial structure, or structure containing mixed residential and commercial uses;
- Acquisition and dedication of parkland; Land transfers in connection with one, two or three family housing; and
- Construction and operation of certain anaerobic digesters at operating publicly owned landfills.
The revised regulations, which take effect on Jan. 1, 2019, also require EIS's to discuss “measures to avoid or reduce both an action's environmental impacts and vulnerability from the effects of climate change such as sea level rise and flooding.” This would seem to require discussion of the official sea level rise projections that DEC issued in February 2017 (and codified as Part 490 of DEC's regulations) for projects in the affected areas. As a related matter, on June 20, DEC issued two draft documents growing out of the Community Risk and Resilience Act of 2014, and designed to help guide consideration of sea level rise, storm surge and flooding-State Flood Risk Management Guidance, and Guidance for Smart Growth Public Infrastructure Assessment. DEC is holding public information and comment meetings, and was accepting written comments until late last month.
Governor Andrew Cuomo's State of the State address in January spoke of these efforts, and proposed to develop a comprehensive program to adapt to and prepare for extreme weather associated with climate change. He said that DEC will update and improve its maps of wetlands and coastal risk areas. He indicated the Department of State will recommend changes to the State Fire Prevention and Building Code that will increase climate resiliency. He said that State agencies will also lead by example with the implementation of individual adaptation plans based on the risks identified by the State Vulnerability Assessment. Finally, the governor announced that the State will provide financial support for state-of-the-art local resiliency plans to create a pipeline of projects to increase the flood resiliency of communities by protecting streams, coasts and critical infrastructure — such as hospitals, transit systems, bridges, water and wastewater infrastructure, dams, culverts and levees — as well as homes and small businesses. Interagency response teams will also conduct at least 40 emergency flood response trainings in communities across New York annually, he indicated.
Recent SEQRA Cases of Note
Of last year's SEQRA decisions from the courts, 19 upheld negative declarations (agency decisions not to require an EIS) and five annulled negative declarations. Eight upheld EIS's and two struck down EIS'sNew York's highest court, the Court of Appeals, issued one decision under SEQRA in 2017 — Friends of P.S. 163 v. Jewish Home Lifecare, Manhattan, 30 N.Y.3d 416 (2017). It concerned a proposed high-rise nursing home on a vacant lot on West 97th Street in Manhattan. Parents of students in an elementary school next door, and tenants in nearby apartment buildings, brought Article 78 proceedings against the State Health Department for approving the project. The State Supreme Court, New York County, annulled the approval on the grounds that the Health Department's EIS had not given enough consideration to two proposed mitigation measures: erecting a tent over the construction site to make sure that soil that might be contaminated with lead would not be blown into the neighborhood; and installing central air conditioning in the elementary school so that the windows could stay closed and construction noise would not disrupt student learning. The Appellate Division reversed, and the Court of Appeals agreed with the Appellate Division. The appellate courts both found that the Department of Health had taken a hard look at the possibility of airborne lead levels, and at the best methods to mitigate construction noise. This is in keeping with a long line of cases where the courts defer to the judgments of administrative agencies in matters within their expertise.
As is the case every year, the great majority of the year's SEQRA decisions upheld the challenged actions. We will just highlight some of the few that did not.
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