In New York, planning boards, town boards, city councils and other government agencies (not private developers) must comply with strict procedures for the review of environmental impacts of proposed projects they approve. If the procedures are not adhered to, citizens may challenge the agency's decision in court, generally seeking to have the decision annulled and the environmental review process started over.
An environmental impact review is mandated by New York's State Environmental Quality Review Act (SEQRA), and its implementing regulations. The Act is found at N.Y. Envtl. Conservation Law (ECL) § 8-0101 et seq., and the regulations are found at N.Y.C.R.R. § 617 (Part 617). The environmental impact review procedure is known as "SEQR." "No agency involved in an action may undertake, fund or approve the action until it has complied with the provisions of SEQR. A project sponsor may not commence any physical alteration related to an [agency] action until the provisions of SEQR have been compiled with." Part 617.3(a).
The first step in SEQR environmental review is to take a "hard look" at the possible impacts of an agency action, and make a determination whether one or more adverse impacts may result. "Agency actions" include approval of a permit, site plan, variance, rezoning, and a local land use law. If, after looking at public comments, a developer's plans (if any), and technical documents supporting the action, the agency cannot find any adverse impacts that might conceivably result from its approval, the agency may issue a "negative declaration" with a supporting "findings" statement. A negative declaration states that not a single adverse impact could come of the agency's action. It must be reasonable to so conclude based on the agency's written findings. If it is, the SEQR review is over.
If, however, one or more adverse impacts could result, the government body must arrange for a draft environmental impact statement (DEIS) and further public comment on the DEIS. (A rezoning, local law or overlay district can be addressed in a Draft Generic EIS.) If the DEIS involves a developer's project, the cost of preparing and reviewing the DEIS can be charged to the developer; a municipal agency should not have to pay anything. Costs chargable to the developer include the use of independent technical and legal consultants. However, the EIS is the agency's document, not the developer's: the agency must ultimately adopt the document, and therefore it must tell the developer to provide as many revisions as necessary to get it right.
Public comments on a DEIS should include technical reports comparable to the level of expertise reflected in the DEIS. Agencies need not (but may) credit lay comments when they have before them a sophisticated DEIS.
The Final EIS must identify each potential adverse impacts and demonstrate for each that the impact (1) has been avoided, or (2) has been mitigated (softened, reduced, minimized), or (3) it is not within the power of the agency or the developer to avoid or minimize. The Final EIS must also include a response to all public comments.
Environmental impact review is a procedure that must allow you to participate.
SEQRA does not dictate any particular level of environmental protection. Rather, it imposes a procedure for considering environmental impacts, including those the public urges be considered. If the decision-making body fails to address the impacts brought to its attention, then the procedure has been violated and can be challenged in court.
SEQR review, all-too-briefly outlined
The best way to determine whether SEQR applies to a proposed project is to work through the DEC's "SEQR Cookbook." Generally, SEQR is required whenever a government body is asked to take an "action," defined as "approval" of a new of modified construction activity, or any other activity "that may affect the environment." Part 617.2(b). For example, issuing a permit is an action, but only if the permit could be denied. Part 617.2(e). Thus, if a building permit must be issued whenever the builder meets all the relevant requirements, issuing that permit is not an action.
What's the "environment"? The answer is important, because many decision-making bodies do not appreciate how broadly SEQRA defines the environment. Impacts that must be considered when SEQR applies include "the physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character." ECL §8-0105 [6]. Potential impacts on any of these are "environmental impacts." SEQR's definition of the environment thus encompasses three areas: (1) physical impacts, (2) impacts on population patterns, and (3) impacts on community.
SEQRA also requires a review of impacts related to the proposed activity, even if they are likely to occur only after the proposed activity is completed, and even if they are indirect. These include cumulative impacts, that is, impacts that add to those already caused by other related activities. Also included are long-term impacts that will occur if one development is likely to lead to another. In that case, the combined impacts of all related developments must be reviewed. See Part 617.7(c).
The environmental impact statement (EIS)
Some approvals of proposed projects are presumed to require an environmental impact statement. For example, an EIS is presumed to be required for any project or permit that involves the physical alteration of 10 acres of land or more. Part 617.4(b)(6)(i). If the action involves an Agricultural District, that threshold is 2.5 acres or more.
An EIS is a substantial study prepared for the agency, generally by the project sponsor. A draft EIS should address all potentially significant environmental impacts (defined broadly as above), alternatives to the proposed project that would avoid the most significant adverse impacts, and things could be done to reduce or offset the most significant adverse impacts, called "mitigations." In fact, the most powerful outcome of the SEQR procedure is often to identify specific mitigations, because SEQRA authorizes the decision-making body to withhold its approval unless it is satisfied everything that can practically be done will be done to reduce or offset significant environmental impacts. These are often things a project sponsor hadn't planned on.
Before making a final decision on whether environmental impacts could be significant, even after any mitigations, the decision-making body must consider not only the information in an EIS, but information provided by the public. Citizens can affect the decision about whether impacts are "significant," and therefore justify alteration or denial of a project or disapproval of a proposed local land use regulation, by submitting informative public comments. To make comments informative citizens should request information about the proposal well in advance of any public comment period.
Effective comments can be made at any time prior to a public comment period deadline by pointing out missing information, requesting clarifications of vague or ambiguous aspects of a project proposal, or showing the decision-making body that important cultural, aesthetic, or growth-related impacts have been neglected.
The two major steps in SEQR review
The first step in determining environmental impacts is to complete a two-part Environmental Assessment Form (EAF). If a project is proposed, the project sponsor completes the first part of the EAF and the government agency completes the second part. If the action proposed a a local land use regulation, the government body completes both parts. A "short form" EAF can also be used if the proposed action does not involve 10 acres of land or is not listed as a "Type I" action (assumed to require an EIS). However, the decision-making body can always require a long form EAF.
The EAF is a checklist of potential areas where impacts could be significant. The decision-making body must review the completed EAF and make a "positive declaration" that adverse impacts will be "significant," or a "negative declaration" that they will not. This declaration must be in writing, must contain "a reasoned elaboration" of the basis for the declaration, and must show that the decision-making body thoroughly analyzed the identified relevant areas of environmental concern.
A negative declaration ("neg-dec") may end the review process, since there is, according to the decision-making body, no more to review. However, if the written neg-dec lacks a sufficient basis to support that decision, it can be challenged by citizens in court.
A positive declaration (that potential impacts may be significant) leads to the second step, preparation of an EIS. The EIS should analyze in depth all potentially significant environmental impacts, alternatives to the proposed project, and it should propose mitigation measures. The decision-making body may reject the first draft EIS as incomplete and ask the project sponsor to address more impacts or address impacts in greater depth. The project sponsor can be made to pay the costs to the decision-making body of obtaining an independent expert review of the DEIS.
Once a draft EIS is accepted as complete, it must be made available to the public, and the decision-making body must provide a public notice that comments on the DEIS are invited for a minimum of 30 days. A public hearing may be held, and if it is, the public comment period must extend at least to ten days after the hearing.
Effective public comments refer to one or more of these requirements and point out that they're missing in the EIS or inadequately addressed there. For more on the requirements to which citizens may address their comments, click here.
Sometimes an agency issues a neg-dec without a public hearing, although it must invite public comments. The decision to hold a public hearing must be made after considering "the degree of interest in the action shown by the public or involved agencies; whether substantive or significant adverse environmental impacts have been identified; the adequacy of the mitigation measures and alternatives proposed; and the extent to which a public hearing can aid the agency decision-making processes by providing a forum for, or an efficient mechanism for the collection of, public comment." Part 617.9(a)(4).
An intermediate (but rare) step is possible, called the "conditioned negative declaration." This occurs when the decision-making body has identified "mitigations" to be performed by the project sponsor that amount to conditions for approval. The conditions, if met, must reduce the environmental impacts, making them insignificant. Public comments may still identify deficiencies in the conditions (that is, showing that the conditions will not actually make the impacts insignificant) or identify additional adverse impacts that have not been considered. If public comments do either, an EIS must be prepared and another public comment period on the EIS must be offered.
After the public comment period
The finalized EIS is not the project sponsor's, it is the agency's. For example, a municipal governing board can conclude the SEQR review only by adopting the final EIS as its own. The board must ultimately certify that all adverse impacts identified in the draft EIS and in public comments have been avoided or, for those that cannot be practically avoided, minimized. The measures to avoid or minimize impacts must also be stated with specificity. See 6 NYCRR § 617.11(d)(4) and (5).
SEQRA allows the board to reject a draft EIS on the grounds that it is incomplete, deficient and some areas erroneous. See 6 NYCRR § 617.9(a)(2)(i). Specific deficiencies identified in public comments should be recited in a notice of deficiency to the project sponsor.
Local law may provide for as little as 30 days from the time the public is notified about a final decision to the deadline for challenging the decision in court. Otherwise, the limitation period is four months, and the challenge is brought as a petition under Article 78 of New York's Civil Practice Law & Rules, in the county Supreme Court.
NOTE ON GENERIC EISs
A "Generic" environmental impact statement (GEIS) provides general guidelines on projects by type but few details on possible projects. For example, it may be appropriate to prepare a GEIS where a town adopts a zoning overlay district for a whole industry.
The SEQRA regulations list the types of agency actions for which consideration of a Generic EIS is authorized:
(1) a number of separate actions in a given geographic area which, if considered singly, may have minor impacts, but if considered together may have significant impacts;
(2) a sequence of actions, contemplated by a single agency or individual;
(3) separate actions having generic or common impacts; or
(4) an entire program or plan having wide application or restricting the range of future alternative policies or projects, including new or significant changes to existing land use plans, development plans, zoning regulations or agency comprehensive resource management plans. (6 NYCRR § 617.10(a)).
A single project is not among the items on this list. Therefore, no authority exists for review of a GEIS from a project sponsor when project details are available.
The advantage to project sponsors is that under SEQRA’s provisions for review of a GEIS, “No further SEQR compliance is required if a subsequent proposed action will be carried out in conformance with the conditions and thresholds established for such actions in the generic EIS or its findings statement.” (6 NYCRR §§ 617.10(d)(i)). An SEIS may be required only where there are “(a) changes proposed for the project; (b) newly discovered information; or (c) a change in circumstances related to the project.” 6 (NYCRR § 617.9(a)(7)(i)).
updated 8/12/2007
