ENVIRONMENTAL LAW: DEVELOPMENTS IN THE LAW OF SEQRA
ENVIRONMENTAL MACRO DRAFT (DO NOT DELETE)8/25/2020 10:26 PMENVIRONMENTAL LAW: DEVELOPMENTS IN THELAW OF SEQRAMark A. Chertok, Margaret Holden & Sahana Rao†TABLE OF CONTENTSINTRODUCTION . 329I.SUMMARY OVERVIEW OF SEQRA . 330II.CASELAW DEVELOPMENTS . 336A. Threshold Requirements in SEQRA Litigation . 3361. Standing. 3372. Ripeness and Statute of Limitations . 338B. Ripeness . 339C. Statute of Limitations. 341D. Procedural Requirements Imposed by SEQRA on StateAgencies . 3421. Classification of the Action . 3422. Unlawful “Segmentation” of SEQRA Review . 3443. Lead Agency Designation and Coordinated Review. 345E. “Hard Look” Review and the Adequacy of AgencyDeterminations of Environmental Significance . 3461. Adequacy of Determinations of EnvironmentalSignificance . 3472. Adequacy of Agencies’ EISs and Findings Statements 349F. Supplementation . 3501. Amending a Determination of Significance. 3502. Supplementing an EIS . 351III. NYC UPDATES . 352A. CEQR Technical Manual. 352B. Consideration of “Typical” Contamination . 354CONCLUSION . 356INTRODUCTIONThis Article will discuss notable developments in the law relating tothe New York State Environmental Quality Review Act (SEQRA) for the† Mark A. Chertok is a partner, and Margaret Holden and Sahana Rao are associates, atSive, Paget & Riesel, P.C. in New York (www.sprlaw.com). The authors practiceenvironmental law at the firm.
DOCUMENT5 (DO NOT DELETE)3308/25/2020 10:26 PMSyracuse Law Review[Vol. 70:329Survey period of 2018–2019.1 This year did not see substantial regulatorydevelopments. As noted in the prior Survey, regulatory activity in the2017–2018 Survey period was more eventful, marked by the New YorkState Department of Environmental Conservation’s (DEC) adoption ofsignificant amendments to SEQRA.2 These amendments were designedto streamline the environmental review process and align SEQRA withstate initiatives, including the advancement of renewable energy andgreen infrastructure, and the consideration of climate change impacts. 3This year, lower and intermediate courts issued decisions discussingvarious legal issues relevant to the SEQRA practitioner—includingstanding, ripeness, and the statute of limitations; procedural issues,including the classification of an action, segmentation, and lead agencydesignation; the adequacy of agencies’ determinations of significance;the sufficiency of agencies’ Environmental Impact Statements (EIS); andsupplementation of determinations of significance and impactstatements.4 Courts also issued two decisions of particular interest to theNew York City practitioner, addressing a challenge to the CityEnvironmental Quality Review Technical Manual and accounting for theubiquity of certain contaminants in New York City when evaluatingchallenges to EISs.5 The Court of Appeals did not issue any decisionsconcerning SEQRA during this most recent Survey period.Part I of this Article provides a brief overview of SEQRA’s statutoryand regulatory requirements. Part II discusses the more important of thenumerous SEQRA decisions issued during the Survey period. Part IIIdiscusses SEQRA and CEQR developments unique to New York City.I. SUMMARY OVERVIEW OF SEQRASEQRA requires governmental agencies to consider the potentialenvironmental impacts of their actions prior to rendering certain defineddiscretionary decisions, called “actions.”6 “The primary purpose ofSEQRA is ‘to inject environmental considerations directly into1. The Survey period covered in this Article is July 1, 2018 to June 30, 2019. A priorSurvey addresses SEQRA developments in the first half of 2018. See Mark A. Chertok &Katherine E. Ghilain, Environmental Law: Developments in the Law of SEQRA for the 2017–18 Survey of New York Law, 69 SYRACUSE L. REV. 837 (2019).2. See Chertok & Ghilain, supra note 1, at 837.3. Id.4. See infra Part II.5. See infra Part III.6. SEQRA is codified at N.Y. ENVTL. CONSERV. LAW §§ 8-0101–8-0117 (McKinney2018). See Mark A. Chertok & Ashley S. Miller, Environmental Law: Climate Change ImpactAnalysis in New York Under SEQRA for the 2007–08 Survey of New York Law, 59 SYRACUSEL. REV. 763, 764 (2009).
DOCUMENT5 (DO NOT DELETE)2020]8/25/2020 10:26 PMEnvironmental Law331governmental decision making.’”7 The law applies to discretionaryactions by New York State, its subdivisions, or local agencies that havethe potential to impact the environment, including direct agency actions,funding determinations, promulgation of regulations, zoningamendments, permits, and other approvals. 8 SEQRA charges DEC withpromulgating general SEQRA regulations, but it also authorizes otheragencies to adopt their own regulations and procedures, provided thatthose regulations and procedures are consistent with and “no lessprotective of environmental values” than those issued by DEC.9A primary component of SEQRA is the EIS, which—if itspreparation is required—describes the proposed action, assesses itsreasonably anticipated significant adverse impacts on the environment,identifies practicable measures to mitigate such impacts, discussesunavoidable significant adverse impacts, and evaluates reasonablealternatives that achieve the same basic objectives as the proposal. 10Actions are grouped into three categories in DEC’s SEQRAregulations: Type I, Type II, or Unlisted.11 Type II actions are enumeratedspecifically and include only those actions that have been determined notto have the potential for a significant impact and thus not to be subject toreview under SEQRA.12 Type I actions, also specifically enumerated,“are more likely to require the preparation of an EIS than Unlistedactions.”13 Unlisted actions are not enumerated, but rather are a catchall7. Akpan v. Koch, 75 N.Y.2d 561, 569, 554 N.E.2d 53, 56, 555 N.Y.S.2d 16, 19 (1990)(quoting Coca-Cola Bottling Co. v. Bd. of Estimate, 72 N.Y.2d 674, 679, 532 N.E.2d 1261,1263, 536 N.Y.S.2d 33, 35 (1988)). For a useful overview of the substance and procedure ofSEQRA, see Jackson v. N.Y. State Urban Dev. Corp., 67 N.Y.2d 400, 415–17, 494 N.E.2d429, 435–36, 503 N.Y.S.2d 298, 304–05 (1986).8. See 6 N.Y.C.R.R. § 617.2(b)–(c) (2018) (defining actions and agencies subject toSEQRA).9. See ENVTL. CONSERV. § 8-0113(1), (3); 6 N.Y.C.R.R. § 617.14(b).10. 6 N.Y.C.R.R. § 617.9(b)(1)–(2), (5).11. See id. § 617.2(aj)–(al); see also ENVTL. CONSERV. § 8-0113(2)(c) (requiring the DECto identify Type I and Type II actions).12. 6 N.Y.C.R.R. § 617.5(a).13. Id. § 617.4(a). This presumption may be overcome, however, if an environmentalassessment demonstrates the absence of significant, adverse environmental impacts. See, e.g.,Hell’s Kitchen Neighborhood Ass’n v. City of N.Y., 81 A.D.3d 460, 461–62, 915 N.Y.S.2d565, 567 (1st Dep’t 2011) (“[W]hile Type I projects are presumed to require an EIS, an EISis not required when, as here, following the preparation of a comprehensive EnvironmentalAssessment Statement (EAS), the lead agency establishes that the project is not likely to resultin significant environmental impacts or that any adverse environmental impacts will not besignificant.”). It is commonplace for a lead agency to determine that a Type I action does notrequire an EIS.
DOCUMENT5 (DO NOT DELETE)3328/25/2020 10:26 PMSyracuse Law Review[Vol. 70:329of those actions that are neither Type I nor Type II.14 In practice, the vastmajority of actions are Unlisted.15Before undertaking an action (except for a Type II action)16, anagency must determine whether the proposed action may have one ormore significant adverse environmental impacts, called a “determinationof significance.”17 To reach its determination of significance, the agencymust prepare an environmental assessment form (“EAF”). 18 For Type Iactions, preparation of a “full EAF” is required, whereas for Unlistedactions, project sponsors may opt to use a “short EAF” instead.19 Whilethe short and full EAFs ask for similar information, the full EAF is anexpanded form that is used for Type I actions or other actions when agreater level of documentation and analysis is appropriate. 20 SEQRAregulations provide models of each form,21 but allow that the forms “maybe modified by an agency to better serve it in implementing SEQR[A],provided the scope of the modified form is as comprehensive as themodel.”22 Where multiple decision-making agencies are involved, thereis usually a “coordinated review” with these “involved agencies”pursuant to which a designated lead agency makes the determination ofsignificance. 23 A coordinated review is required for Type I actions,24 and14. 6 N.Y.C.R.R. § 617.2(al).15. N.Y. STATE DEP’T OF ENVTL. CONSERVATION, THE SEQRA HANDBOOK 29 (3d .ny.gov/docs/permits ej operations pdf/dseqrhandbook.pdf.16. See 6 N.Y.C.R.R. § 617.6(a)(1)(i).17. See id. § 617.7(a)(1).18. See id. § 617.6(a)(2)–(3).19. Id. See also § 617.20 (providing that the project sponsor prepares the factual elementsof an EAF (part 1), whereas the lead agency completes part 2, which addresses thesignificance of potential adverse environmental impacts, and part 3, which constitutes theagency’s determination of significance).20. See id. § 617.6(a)(2)–(3).21. See 6 N.Y.C.R.R. § 617.20 (establishing model EAFs: “Appendices A and B aremodel environmental assessment forms that may be used to help satisfy this Part or may bemodified in accordance with sections 617.2(m) and 617.14 of this Part.”). DEC also maintainsEAF workbooks to assist project sponsors and agencies in using the forms. See EnvironmentalAssessment Form (EAF) Workbooks, N.Y. STATE DEP’T OF ENVTL. tml (last visited Sept. 26, 2019).22. 6 N.Y.C.R.R. § 617.2(m). New York City, which implements SEQRA under its CityEnvironmental Quality Review (see infra Part III discussion), uses an EnvironmentalAssessment Statement, or EAS, in lieu of an EAF. See, e.g., Hell’s Kitchen NeighborhoodAss’n., 81 A.D.3d at 461–62, 915 N.Y.S.2d at 567 (noting the preparation of a comprehensiveEnvironmental Assessment Statement).23. See 6 N.Y.C.R.R. § 617.6(b)(2)(i), (b)(3)(i)–(ii).24. Id. § 617.4(a)(2).
DOCUMENT5 (DO NOT DELETE)2020]8/25/2020 10:26 PMEnvironmental Law333the issuance of a negative declaration in a coordinated review binds otherinvolved agencies.25If the lead agency “determine[s] either that there will be no adverseenvironmental impacts or that the . . . impacts will not be significant,” noEIS is required, and instead the lead agency issues a negativedeclaration.26 If the answer is affirmative, the lead agency may in certaincases impose conditions on the proposed action to sufficiently mitigatethe potentially significant adverse impacts27 or, more commonly, the leadagency may issue a positive declaration requiring the preparation of anEIS.28If an EIS is prepared, the first step is the scoping of the contents ofthe Draft EIS (DEIS).29 Until this year, scoping had been commonplacebut not required.30 However, effective January 1, 2019, under the 2018SEQRA amendments discussed in the prior Survey, scoping is nowmandatory for all EISs, except for supplemental EISs. 31 Scoping involvesfocusing the EIS on relevant areas of environmental concern, with thegoal (not often achieved) of eliminating inconsequential subjectmatters.32 A draft scope, once prepared by a project sponsor and acceptedas adequate and complete by the lead agency (and in some circumstancesthe project sponsor, when an agency, may also be the lead agency), iscirculated for public and other agency review and comment.33 A publicmeeting with respect to the proposed scope is typically held. 34 Asdiscussed below in Part II, the project sponsor now must incorporate theinformation submitted during the scoping process into the DEIS orinclude the comment as an appendix to the document, depending on therelevancy of the information or comment.3525. See id. § 617.6(b)(3)(iii).26. See id. § 617.7(a)(2), (d).27. See id. §§ 617.2(h), 617.7(d)(2)(i). This is known as a conditioned negative declaration(CND). For a CND, the lead agency must issue public notice of its proposed CND and, ifpublic comment identifies “potentially significant adverse environmental impacts that werenot previously” addressed or were inadequately addressed, or indicates the mitigationmeasures imposed are substantively deficient, an EIS must be prepared. 6 N.Y.C.R.R. §617.7(d)(1)(iv), (2)(i), (3). CNDs cannot be issued for Type I actions or where there is noapplicant. See id. § 617.7(d)(1).28. 6 N.Y.C.R.R. § 617.7(d)(2)(i).29. See SEQRA HANDBOOK, supra note 15, at 108.30. See id.31. Id.; 6 N.Y.C.R.R. § 617.8(a); see also Environmental Law: Developments in the Lawof SEQRA for the 2017–18 Survey of New York Law, 69 SYRACUSE L. REV 837 (2019).32. See 6 N.Y.C.R.R. § 617.8(a).33. See id. § 617.8(b)–(d).34. See id. § 617.8(d).35. Id. § 617.8(g)–(f).
DOCUMENT5 (DO NOT DELETE)3348/25/2020 10:26 PMSyracuse Law Review[Vol. 70:329A DEIS must include an alternatives analysis comparing theproposed action to a “range of reasonable alternatives . . . that arefeasible, considering the objectives and capabilities of the projectsponsor.”36 This analysis includes a “no action alternative,” whichevaluates the “changes that are likely to occur . . . in the absence of theproposed action” and generally constitutes the baseline against whichproject impacts are assessed. 37In addition to “analyz[ing] the significant adverse impacts andevaluat[ing] all reasonable alternatives,” the DEIS should include anassessment of “impacts only where they are relevant and significant,”which the SEQRA regulations define as:(a) reasonably related short-term and long-term impacts, cumulativeimpacts and other associated environmental impacts;(b) those adverse environmental impacts that cannot be avoided oradequately mitigated if the proposed action is implemented;(c) any irreversible and irretrievable commitments of environmentalresources that would be associated with the proposed action should itbe implemented;(d) any growth-inducing aspects of the proposed action;(e) impacts of the proposed action on the use and conservation of energy.;(f) impacts of the proposed action on solid waste management and itsconsistency with the State or locally adopted solid waste managementplan; [and](i) measures to avoid or reduce both an action’s impacts on climatechange and associated impacts due to the effects of climate change suchas sea level rise and flooding.38Although not required, the lead agency typically holds a legislativehearing with respect to the DEIS.39 That hearing may be, and often is,combined with other hearings required for the proposed action. 40 Thenext step is the preparation of a final EIS (“FEIS”), which addresses any36. Id. § 617.9(b)(5)(v). For private applicants, alternatives might reflect differentconfigurations of a project on the site. 6 N.Y.C.R.R. § 617.9(b)(5)(v)(g). They also mightinclude different sites if the private applicant owns other parcels. Id. The applicant shouldidentify alternatives that might avoid or reduce environmental impacts. Id.§ 617.9(b)(5)(iii)(i).37. 6 N.Y.C.R.R. § 617.9(b)(5)(v).38. 6 N.Y.C.R.R. § 617.9(b)(1), (b)(5)(iii)(a)–(f), (i).39. See id. § 617.9(a)(4).40. See id. § 617.3(h) (“Agencies must . . . provid[e], where feasible, for combined orconsolidated proceedings . . . .”).
DOCUMENT5 (DO NOT DELETE)2020]8/25/2020 10:26 PMEnvironmental Law335project changes, new information and/or changes in circumstances, andresponds to all substantive comments on the DEIS.41 After preparation ofthe FEIS, and prior to undertaking or approving an action, each acting(i.e., involved) agency must issue findings that the provisions of SEQRA(as reflected in DEC’s implementing regulations) have been met and,“consider[ing] the relevant environmental impacts, facts and conclusionsdisclosed in the [F]EIS,” must “weigh and balance relevantenvironmental impacts with social, economic and otherconsiderations.”42 The agency must then:certify that consistent with social, economic and other essentialconsiderations from among the reasonable alternatives available, theaction is one that avoids or minimizes adverse environmental impactsto the maximum extent practicable, and that adverse environmentalimpacts will be avoided or minimized to the maximum extentpracticable by incorporating as conditions to the decision thosemitigative measures that were identified as practicable.43The substantive mitigation requirement of SEQRA is an importantfeature of the statute—a requirement notably absent from SEQRA’sparent federal statute, the National Environmental Policy Act (NEPA). 44For agency actions that are “broader” or “more general than site orproject specific” decisions, SEQRA regulations provide that agenciesmay prepare a generic EIS (“GEIS”). 45 Preparation of a GEIS isappropriate if: (1) “a number of separate actions [in an area], if consideredsingly, may have minor impacts, but if considered together may havesignificant impacts;” (2) the agency action consists of “a sequence ofactions” over time; (3) separate actions under consideration may have“generic or common impacts;” or (4) the action consists of an “entireprogram [of] wide application or restricting the range of future alternativepolicies or projects.”46 GEISs commonly relate to common or programwide impacts, and set forth criteria for when supplemental EISs will berequired for site-specific or subsequent actions that follow approval ofthe initial program.4741. See id. § 617.11(a).42. See id. § 617.11(a), (d)(1)–(2).43. 6 N.Y.C.R.R. § 617.11(d)(5).44. See 42 U.S.C. §§ 4321–74370 (2012) (establishing federal responsibilities forprotecting and enhancing the quality of the environment); Jackson, 67 N.Y.2d at 415, 494N.E.2d at 434, 503 N.Y.S.2d at 303 (quoting Philip H. Gitlen, The Substantive Impact of theSEQRA, 46 ALB. L. REV. 1241, 1248 (1982)).45. See 6 N.Y.C.R.R. § 617.10(a).46. Id. § 617.10(a)(1)–(4).47. See id. § 617.10(c).
DOCUMENT5 (DO NOT DELETE)3368/25/2020 10:26 PMSyracuse Law Review[Vol. 70:329The City of New York has promulgated separate regulationsimplementing the City’s and City agencies’ environmental reviewprocess under SEQRA, which is known as City Environmental QualityReview (CEQR).48 As previously explained, SEQRA grants agencies andlocal governments the authority to supplement DEC’s general SEQRAregulations by promulgating their own.49 Section 192(e) of the New YorkCity Charter delegates that authority to the City Planning Commission.50In addition, to assist “city agencies, project sponsors, [and] the public” innavigating and understanding the CEQR process, the New York CityMayor’s Office of Environmental Coordination has published the CEQRTechnical Manual.51 First published in 1993, the Manual, as now revised,is about 800 pages long and provides an extensive explanation of CEQRlegal procedures; methods for evaluating various types of environmentalimpacts, such as transportation (traffic, transit and pedestrian), airpollutant emissions, noise, socioeconomic effects,
This Article will discuss notable developments in the law relating to the New York State Environmental Quality Review Act (SEQRA) for the † Mark A. Chertok is a partner, and Margaret Holden and Sahana Rao are associates, at Sive, Paget & Riesel, P.C. in New York (www.sprlaw.com). The authors practice environmental law at the firm.
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Le genou de Lucy. Odile Jacob. 1999. Coppens Y. Pré-textes. L’homme préhistorique en morceaux. Eds Odile Jacob. 2011. Costentin J., Delaveau P. Café, thé, chocolat, les bons effets sur le cerveau et pour le corps. Editions Odile Jacob. 2010. Crawford M., Marsh D. The driving force : food in human evolution and the future.
Le genou de Lucy. Odile Jacob. 1999. Coppens Y. Pré-textes. L’homme préhistorique en morceaux. Eds Odile Jacob. 2011. Costentin J., Delaveau P. Café, thé, chocolat, les bons effets sur le cerveau et pour le corps. Editions Odile Jacob. 2010. 3 Crawford M., Marsh D. The driving force : food in human evolution and the future.
