Chapter XVII
ENVIRONMENTAL IMPACT REVIEW
A. NEPA
The National Environmental Policy Act (“NEPA”), 42 U.S.C. §§4321, et seq., requires that federal agencies take environmental factors into consideration in their decisionmaking processes. Under NEPA, an environmental impact statement (“EIS”) is required for “major federal actions significantly affecting the quality of the human environment.” NEPA §102, 42 U.S.C. §4332(c). While it requires “full disclosure,” it does not mandate any particular result.
Regulations implementing the requirements of NEPA are set forth at 40 C.F.R. Parts 1501 to 1508. Many individual federal agencies also have their own regulations to implement NEPA.
In order to determine the necessity of an EIS, agencies may define certain types of actions as “categorically excluded,” or else usually requiring an EIS. 40 C.F.R. §1501.4(a). Otherwise, an environmental assessment (“EA”) must be prepared. 40 C.F.R. §1501.4(b). Any federal agency involved in a proposed action must make a “determination of significance,” 40 C.F.R. §1508.4(c), and either make a Finding of No Significant Impact (“FONSI”), 40 C.F.R. §1508.13, or else determine that an EIS will be required. Mitigation measures can be considered when making this determination.
This threshold determination must be made, and a FONSI made or an EIS completed, before a decision can be made by a federal agency on a proposed action. If required, an EIS must address:
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which should be involved in the proposed action should it be implemented.
NEPA §102(c), 42 U.S.C. §4332(c). A draft EIS must first be circulated for public comment, followed by a final EIS which addresses substantive public comments. §1502.9.
Interested persons may
be able to sue in federal district to challenge the adequacy of the NEPA review
if it is “arbitrary or capricious,” such as where there is no “reasoned
elaboration” to adequately justify a FONSI.
City of
B. SEQRA
Many states have their
own “mini-NEPA” statute to require environmental review of state and local
actions. In
declare a state policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding to the ecological systems, natural, human and community resources important to the people of the state.
ECL §8-0101. SEQRA requires that “[s]ocial, economic and environmental factors shall be considered together in reaching decisions on proposed activities,” ECL §8-0103(7), and that public agencies will give “due consideration... to preventing environmental damage.” ECL § 8-0103(9). The primary purpose of SEQRA is “to inject environmental considerations directly into governmental decision making.” Matter of Coca-Cola Bottling, Inc. v. Board of Estimate, 72 N.Y.2d 674, 679, 536 N.Y.S.2d 33, 35 (1988). The legislative intent is clear that “to the fullest extent possible the policies, statutes, regulations and ordinances of the state and its political subdivisions should be interpreted and administered in accordance with the policies set forth in” SEQRA. ECL §8-0103(6).
The heart of SEQRA is ECL §8-0109(4), which requires “agencies” (including state and municipal, boards, agencies and authorities), “[a]s early as possible in the formulation of a proposal for action” to “make an initial determination whether an environmental impact statement need be prepared,” and ECL §8-0109(2), which requires all state agencies and municipalities to prepare or cause to be prepared “an environmental impact statement on any action they propose or approve which may have a significant effect on the environment.” Regulations set forth at 6 N.Y.C.R.R. Part 617 prescribe the procedures used under SEQRA.
1. Actions. All “actions,” including all “projects or physical activities” that are undertaken, funded or approved by an agency, and planning, policy making, and enactment of laws, rules or regulations, 6 N.Y.C.R.R. §617.2(b), are subject to SEQRA. Actions involving federal agencies are subject to SEQRA unless a federal EIS is compiled. 6 N.Y.C.R.R. §617.15.
If an action is classified as a “Type II action,” no further SEQRA review is required. 6 N.Y.C.R.R. §§617.3(a), 617.6(a)(1)(I). The list of Type II actions is set forth at 6 N.Y.C.R.R. §617.5(c), and includes 37 categories of actions that are presumed to have only de minimis environmental impacts, including maintenance or repair or existing facilities, replacement in kind of existing facilities (below a specified threshold), construction of certain non-residential and educational facilities (below a specified threshold), school closings, agricultural farm management practices, permit renewals, individual setback variances, area variances for one to three-family houses, preliminary feasibility studies, moratoria on land development, judicial proceedings, acts of the Legislature, emergency actions, ministerial acts, certain actions subject to regulation under the Public Service Law or by the Adirondack Park Agency, and numerous other categories.
The list of “Type I actions” is set forth at 6 N.Y.C.R.R. §617.4(b), and includes 11 categories of actions, including the adoption of a new land use plan, rezoning of 25 acres, and the physical alteration of more than 10 acres. “Unlisted actions” are action that are not specifically listed as Type I or Type II. 6 N.Y.C.R.R. §617.2(ak).
2. Environmental Assessment Form. The SEQRA regulations first require
completion of an Environmental Assessment Form (“EAF”), which is ordinarily
prepared by or for the applicant, and reviewed by a “lead” agency. 6 N.Y.C.R.R. §617.6(a)(2,3). For a “Type I action,” use of the lengthy
“full EAF” is mandatory. §617.6(a)(2); Farrington Close
Condominium Bd. Of Managers v. Incorporated
3. Lead
Agency. If more than one
agency is an “involved agency” which makes a decision on the action, a lead
agency may be selected by agreement of the agencies through the “coordinated
review process,” which is required for Type I actions. 6 N.Y.C.R.R. §617.6(b)(3). If only one is involved, it automatically
acts as “lead.” §617.6(b)(1). The lead agency
function cannot be delegated to an uninvolved agency. Coca-Cola Bottling v. Board of Estimate, 72 N.Y.2d 674, 536
N.Y.S.2d 33 (1988). Unlisted
actions can, but do not have to go through coordinated review, so each involved
agency can conduct its own separate SEQRA review. 6 N.Y.C.R.R. §617.6(b)(4). If involved agencies are not included in the
designation process, the designation of lead agency is improper. Ferrari v. Town of
4. Determination of
Significance. The lead agency then
makes a “determination of significance” by reviewing the EAF, and deciding
whether the proposal “may include the potential for at least one significant
adverse environmental impact.” §617.7(a)(1); see West Branch Assoc. v. Planning Board,
Town of
In making the determination of significance, the lead agency must:
(i) consider the action as defined in sections 617.2(b) and 617.3(g) of [the SEQRA regulations];
(ii) review the EAF, the criteria contained in subdivision (c) of this section and any other supporting information to identify the relevant areas of environmental concern;
(iii) thoroughly analyze the identified relevant areas of environmental concern to determine if the action may have a significant effect on the environment; and
(iv) set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation.
6 N.Y.C.R.R. §617.7(b). Thus, the lead agency “must identify ‘the relevant areas of environmental concern’ and take a ‘hard look’ at them.” Merson v. McNally, 90 N.Y.2d 742, 665 N.Y.S.2d 605, 609 (1997) [citing Matter of Chemical Specialties Mfrs. Assn. v. Jorling, 85 N.Y.2d 382, 397, 626 N.Y.S.2d 1 (1995)]; Kahn v. Pasnik, 90 N.Y.2d 569, 664 N.Y.S.2d 584 (1997).
The lead agency cannot
merely set forth a “conclusory statement, unsupported by empirical or
experimental data, scientific authorities or any explanatory information.” Tehan v. Scrivani, 97 A.D.2d 769, 771, 468 N.Y.S.2d 402, 406 (2d
“The threshold at which
the requirement that an EIS be prepared is triggered relatively low.” Chinese Staff v. City of
A “conditioned negative declaration” can be made, after public comment, if impacts of an unlisted action can be mitigated by conditions, 6 N.Y.C.R.R. §617.7(d), but cannot be used for a Type I action. Ferrari v. Town of Penfield, 181 A.D.2d, 149, 585 N.Y.S.2d 925 (4th Dep’t 1992); Shawangunk Mountain Environmental Association v. Planning Board of Town of Gardiner, 157 A.D.2d 273, 557 N.Y.S.2d 495 (3d Dep't 1990).
5. Cumulative Impacts.
SEQRA generally requires the consideration of cumulative environmental impacts
of separate actions. See, e.g., Chinese Staff & Workers Assoc. v. City of New York, 68 N.Y.2d
359, 509 N.Y.S.2d 499 (1986) (cumulative impact of seven separate luxury
apartment buildings on displacement of low-income residents); Save the Pine Bush v. City of Albany, 70
N.Y.2d 193, 518 N.Y.S.2d 943 (1987) (cumulative impact of ten separate projects
in the Pine Bush area on habitat of an endangered butterfly); Village of Westbury v. Department of Transportation,
75 N.Y.2d 62, 67, 550 N.Y.S.2d 604, 609 (1989) (interchange reconstruction
project and road widening were part of the same overall plan to alleviate
traffic congestion); Segal v. Town of
What are the cumulative impacts?
These are impacts on the environment that result from the incremental or increased impact of an action(s) when the impacts of that action are added to other past, present and reasonably foreseeable future actions. Cumulative impacts can result from a single action or a number of individually minor but collectively significant actions taking place over a period of time. Either the impacts or the actions themselves must be related.
When must cumulative impacts be assessed?
Cumulative impacts must be assessed when actions are proposed to or will foreseeably take place simultaneously or sequentially in a way that their combined impacts may be significant. Assessment of cumulative impacts is limited to consideration of probable impacts, not speculative ones.
“[C]onsidering the
cumulative effects of related actions insures against stratagems to avoid the
required environmental review by breaking up a proposed development into
component parts which, individually, do not have sufficient environmental
significance.” Stewart Park and Reserve Coalition v. New York State Department
of Environmental Conservation, 157 A.D.2d 1,
10, 555 N.Y.S.2d 481, 486 (3d
In making the determination of significance, a lead agency must make a positive declaration when presented with “two or more related actions undertaken, funded or approved by an agency, none of which has or would have a significant impact on the environment, but when considered cumulatively would meet one or more of the criteria [for a positive declaration] in this subdivision.” 6 N.Y.C.R.R. §617.7(c)(1)(xii). Further, when making the determination of significance:
the lead agency must consider reasonably related long-term, short-term, direct, indirect and cumulative impacts, including other simultaneous or subsequent actions which are:
(i) included in any long-range plan of which the action under consideration is a part;
(ii) likely to be undertaken as a result thereof; or
(iii) dependent thereon.
6 N.Y.C.R.R. §617.7(c)(2). ECL §8-0109(2) specifically requires that all potential environmental impacts of a project subject to an EIS be considered, including the long-term and short-term effects of the project. Likewise, the SEQRA regulations require that an EIS assess all “reasonably related short-term and long-term impacts, cumulative impacts and other associated environmental impacts.” 6 N.Y.C.R.R. §617.9(b)(5)(iii)(a).
However, in Long Island Pine Barrens Society, Inc. v. Planning Board of the Town of Brookhaven, 80 N.Y.2d 500, 591 N.Y.S.2d 982 (1993), the Court of Appeals held that it is not necessary to consider cumulative impacts of independent actions that are not part of the same plan. Nonetheless, the lead agency may opt to require an analysis of cumulative impacts of separate actions. Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630 (2d Cir. 1999) (lead agency could use discretion to decide whether to consider cumulative impacts of applications for separate cell towers in the same town).
6. Segmentation. The SEQRA regulations recognize that “[a]ctions commonly consist of a set of activities or steps,” 6 N.Y.C.R.R. §617.3(g)(1), and provide that:
Considering only a part of segment of an action is contrary to the intent of SEQR. If a lead agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance and any subsequent EIS the supporting reasons and must demonstrate that such review is clearly no less protective of the environment. Related actions should be identified and discussed to the fullest extent possible.
6 N.Y.C.R.R. §617.3(g)(1).
Thus, SEQRA generally
prohibits “segmentation,” which is defined as “the division of the
environmental review of an action such that various activities or stages are
addressed under this Part as though they were independent, unrelated
activities, needing individual determinations of significance.” 6 N.Y.C.R.R. §617.2(ag). See Sun
Company, Inc. v. City of Syracuse Industrial Development Agency, 209 A.D.2d
34, 625 N.Y.S.2d 371 (4th
Accordingly, “[e]nvironmental review of the
entire project is required before ‘any significant authorization is granted for
a specific proposal.’”
Nonetheless, the SEQRA
regulations also provide that “[i]f a lead agency believes that circumstances
warrant a segmented review, it must clearly state in its determination of
significance, and any subsequent EIS, the supporting reasons and must
demonstrate that such review is clearly no less protective of the environment. Related actions should be
identified and discussed to the fullest extent possible.” 6 N.Y.C.R.R. §617.3(g)(1). Thus, in
Concerned Citizens for the Environment v. Zagata, 243 A.D.2d 20, 672 N.Y.S.2d
956 (3d Dep’t 1998), lv. den’d 92
N.Y.2d 808, 678 N.Y.S.2d 594 (1998), it was not improper to segment review of a
solid waste management facility from other portions of an integrated solid
waste facility, including an incinerator and a resource recovery facility,
since the process was “no less protective of the environment.” Where segmentation is allowed, it is not
necessary to consider the cumulative impacts of later actions, since such a
requirement would “eamasculat[e] any concept of segmented review.”
7. EIS Process. If an EIS is required, the “scoping” process may be used to define the issues to be addressed. 6 N.Y.C.R.R. §617.8. If a positive declaration has been made, a draft EIS must be circulated, public comment allowed for at least 30 days, and a final EIS compiled which addresses public comments. §617.9. The lead agency may require a private applicant to prepare an EIS. §617.9(a)(1).
The lead agency may, but is not required to, hold a public hearing on the DEIS. 6 N.Y.C.R.R. §617.9(a)(4). If, “on the basis of the draft EIS, and comments made thereon, the lead agency has determined that the action will not have a significant adverse impact on the environment,” the EIS process can be aborted, and a negative declaration prepared. 6 N.Y.C.R.R. §617.7(a)(5)(i)(b).
The SEQRA regulations
prescribe the basic contents of an EIS, 6 N.Y.C.R.R. §617.9(b), and set
procedures for a “generic” EIS, §617.10.
In the EIS, the lead agency is required to (1) identify the relevant
areas of environmental concern, (2) take a “hard look” at them, and (3) make a
“reasoned elaboration” of the basis for its determination. H.O.M.E.S. v.
An EIS must assess “the
environmental impact of the proposed action including short-term and long-term
effects,” “any adverse environmental effects,” “any irreversible and
irretrievable commitments of resources,” and “growth inducing aspects” of the
proposed action. ECL
§8-0109(2). The DEIS cannot defer
resolution of mitigation measures, “because it shields the [mitigation] plan
from public scrutiny.” Matter of Penfield Panorama v. Penfield
Planning Board Area Community, Inc., 253 A.D.2d 342, 349, 688 N.Y.S.2d 848,
853 (4th Dep’t 1999); see also Town of
Red Hook v. Dutchess County Resource Recovery Agency, 146 Misc.2d 723, 552
N.Y.S.2d 191 (Sup.
An EIS must also contain
an evaluation of “alternatives to the proposed action,” ECL §8-0109(2). The analysis of alternatives has been called
the “driving spirit” of the SEQRA process.
Citizens for Preservation of
8. Findings. Neither the lead agency, nor any other involved agency, can take action until the public is given at least 10 days to consider the final EIS, and findings are made. 6 N.Y.C.R.R. §617.11(a,c). The findings must:
(1) consider relevant environmental impacts, facts and conclusions disclosed in the final EIS;
(2) weigh and balance relevant environmental impacts with social, economic and other considerations;
(3) provide a rationale for the agency’s decision;
(4) certify that the requirements of [SEQRA] have been met;
(5) certify that consistent with social, economic and other essential considerations from among the reasonable alternatives available, the action is one that avoids or minimizes adverse environmental effects to the maximum extent practicable, and that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures that were identified as practicable.
6 N.Y.C.R.R. §617.11(d); see also ECL §8-0109(8).
This is the “teeth” of SEQRA, and the only provision which clearly takes it beyond a mere environmental full disclosure procedure, and requires substantive results, including mitigation measures. Thus, in making findings, an agency must:
consider fully the environmental consequences revealed in an EIS and to take these consequences into account when reaching a decision whether or not to approve an action. Moreover, the statute authorizes the approving agency to implement measures designed to mitigate the adverse environmental impacts identified, so long as these measures are reasonable in scope and are reasonably related to the adverse impacts identified in the EIS.
Town of
9. Timing of SEQRA Review. SEQRA requires that “consideration must be
given at the earliest possible time (ECL §8-0109(a)) to the impacts which may
be reasonably expected to result from any proposed action.” Kirk-Astor Drive Neighborhood
Assoc. v. Town of Pittsford, 106 A.D.2d 868, 483 N.Y.S.2d 526, 528 (4th
“No agency involved in
an action may undertake, fund or approve the action until it has complied with
the provisions of SEQR.” 6 N.Y.C.R.R. §617.3(a).
The “purpose of SEQRA is to assure the preparation and availability of
an environmental impact statement at the time any significant authorization is
granted for a specific proposal.” Tri-County Taxpayers Assoc.
v. Town Board of Queensbury, 55 N.Y.2d 41, 46-7, 447 N.Y.S.2d 699, 701
(1982). That way, “a decision
maker [will] balance the benefits of a proposed project against its unavoidable
environmental risks in determining whether to approve the project.” Town of
“[C]ompliance with SEQRA
must occur before the agency acts; after-the-fact compliance is of no
avail.” DiVeronica v. Arsenault, 124 A.D.2d 442,
507 N.Y.S.2d 541, 543 (3d
“Significant
authorizations” required to be preceded by full SEQRA compliance have included
such things as permit approvals, City of
Schenectady v. Flacke, 100 A.D.2d 349, 475 N.Y.S.2d 506 (3d Dep't 1984), app. den’d 63 N.Y.2d 603, 480 N.Y.S.2d
1025 (1984), a referendum to approve a special district, Tri-County Taxpayers Assoc. v. Town Board of Queensbury, 55 N.Y.2d
41, 447 N.Y.S.2d 699 (1982), and an application for federal funding, Bardon v. Town of North Dansville, 134
Misc.2d 927, 513 N.Y.S.2d 584 (Sup.
Furthermore, an application for a permit or funding is not complete until either a negative declaration is made, or a draft EIS is accepted. 6 N.Y.C.R.R. §617.3(c). “When the draft EIS is accepted, the SEQR process will run concurrently with other procedures relating to the review and approval of the action, if reasonable time is provided for preparation, review and public hearing with respect to the draft EIS.” 6 N.Y.C.R.R. §617.3(c)(2).
10. Notice Requirements. The SEQRA regulations also include a variety of notice and filing requirements, 6 N.Y.C.R.R. §617.12. “Notice of a Type I negative declaration, conditioned negative declaration, positive declaration and completion of an EIS must be published in the Environmental Notice Bulletin.” 6 N.Y.C.R.R. §617.12(c)(1). The ENB can be found on the DEC web site at http://www.dec.state.ny.us/website/enb/, but is not available in hard print anymore. In addition, “[n]otice of a negative declaration must be incorporated once into any other subsequent notice required by law.” 6 N.Y.C.R.R. §617.12(c).
While notice of a public hearing on a DEIS must be published “at least 14 days in advance of the hearing date, in a newspaper of general circulation in the area of the potential impacts of the action,” 6 N.Y.C.R.R. §617.12(c)(2), there is no requirement for publication in a local newspaper if the lead agency elects not to have a public hearing.
11. Judicial Review. Compliance with SEQRA is subject to review by
a special proceeding under CPLR Article 78, which is generally governed by the
four-month statute of limitations set forth at CPLR §217. Save the Pine Bush v. City of
The courts mandate “literal” or “strict compliance” with the SEQRA process, and “substantial compliance” has been held insufficient. King v. Saratoga Board of Supervisors, 89 N.Y.2d 341, 653 N.Y.S.2d 233 (1996); Taxpayers Opposed To Floodmart, Ltd. v. City of Hornell Industrial Development Agency, 212 A.D.2d 958, 624 N.Y.S.2d 689, 690 (4th Dept. 1995), stay vac’d 85 N.Y.2d 961, 628 N.Y.S.2d 48 (1995), app. dis’d 85 N.Y.2d 812, 631 N.Y.S.2d 289 (1995); Matter of West Branch Conservation Ass’n v. Planning Bd. of the Town of Ramapo, 177 A.D.2d 917, 576 N.Y.S.2d 675, 677 (3d Dep’t 1991).
However,
judicial review of the content of the EIS and other “substantive obligations
under SEQRA must be viewed in light of a rule of reason. ‘Not every conceivable environmental impact,
mitigating measure or alternative must be identified and addressed before an
FEIS will satisfy the substantive requirements of SEQRA.'’”
Under the “broad rule of
standing,” Douglaston Civic Association,
Inc. v. Galvin, 36 N.Y.2d 1, 6, 364 N.Y.S.2d 830, 834 (1974), where
citizens “are within the ‘zone of interest’ protected” by a statute, they have
standing to bring suit, because it is desirable that environmental disputes be
resolved on their merits rather than by preclusive, restrictive standing
rules.” Ecumenical Task Force of Niagara Frontier, Inc. v. Task Force of Love
Canal Area Revitalization Agency, 179 A.D.2d 261, 265, 583 N.Y.S.2d 859
(4th Dep't 1992), app. dis'd. 80 N.Y.2d 758 (1992). Thus, nearby residents who will be
impacted by a project will have standing,
Steele v. Town of Salem Planning
Board, 200 A.D.2d 870, 606 N.Y.S.2d 810 (3d Dep’t 1994), and adjoining
landowners are automatically presumed to have standing. Crady
v. Newcomb, 142 A.D.2d 940, 530 N.Y.S.2d 365 (4th
If an organization
brings suit, at least one member must have standing in their own right, the
interests it asserts must be “germane to its purposes,” and it must be
unnecessary to join individual petitioners.
Society of
Plastics Industry, Inc. v.