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.
The discussion below does not apply to large-scale renewable energy projects (>25 MW in design capacity; or 2-25 MW in capacity if the project sponsor opts into the post-2021 ORES permitting program). However, smaller solar farms (there are generally no smaller wind farms) continue to be governed by local law and SEQRA.
An environmental impact review is mandated by New York's State Environmental Quality Review Act, 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 6 N.Y.C.R.R. § 617 (Part 617). The Act is known as "SEQRA," the environmental impact review procedure is known as "SEQR" (seek-er). "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 a SEQR environmental review is to make a determination whether one or more adverse impacts may result from an agency action. "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, and technical documents supporting the action (including those submitted by the public), the agency cannot find any adverse impacts that might reasonably 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 reasonably come of the agency's action. If that is reasonable conclusion based on the information the agency had before it, the SEQR review is over.
If, however, one or more adverse impacts could result, a draft environmental impact statement (DEIS) is required, as there must be an opportunity for additional 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. Part 617.2(a). Costs chargeable to the developer include the use of independent technical and legal consultants. However, the final 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.
For some issues raised by the proposed action, 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. For other issues, such as the effects the action may have on the character of the neighborhood, lay comments are entirely appropriate. The same is true of environmental impacts such as impacts on local wildlife, drainage and water quality for which residents in the area may be as knowledgeable or more so than outside experts.
The Final EIS must identify each potential adverse impact and demonstrate for each that the impact (1) has been avoided, or (2) has been mitigated (softened, reduced, minimized, or compensated), or (3) it is not within the power of the agency or the developer to avoid or minimize. The Final EIS must also include responses 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 taking a "hard look" at environmental impacts, including those the public urges be considered. If the decision-making body fails to meaningfully address the impacts brought to its attention, then the procedure may be challenged in court. Courts have consistently enforced the "hard look" standard by stating that without strict compliance with SEQR procedures, an action subject to SEQR should be annulled.
SEQR review: some of the details
One way to determine whether SEQR applies to a proposed project is to work through DEC's "SEQR Cookbook." Generally, SEQR review is required whenever a government body (= "agency") is asked to take an "action," defined as "approval" of a new or 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 agencies 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 include physical impacts on the environment, impacts on population patterns, and community impacts.
Potential impacts also include 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. These are termed Type I actions. (Type II actions are those that never require an EIS, and Unlisted actions are neither Type I or II.) There is a list of common Type I actions in Part 617.4(b). The list includes "the adoption of a municipality's land use plan", zoning changes affecting 25 or more acres of the district, projects that physically alter 10 acres or more, projects that use more than 2,000,000 gallons per day, projects that require parking for 1,000 vehicles or more, "any structure exceeding 100 feet above original ground level in a locality without any zoning regulation pertaining to height", an Unlisted action that includes a nonagricultural use in an agricultural district, and Unlisted actions close to a recognized historic site or public recreation area.
Type I actions require the agency to complete a Full Environmental Assessment Form (EAF). A Short EAF may be completed for Unlisted actions. Part 617.6(a)(2) and (3). The answers to the questions on both EAFs are designed to determine whether an EIS should be required. Concerned citizens should therefore scrutinize closely how the agency answered those questions. This is an important point in the SEQR review procedure where you may learn how honest the agency is being, and whether it intends to really take a hard look at potential negative impacts of its proposed action. It is difficult to honestly complete the FEAF for a large project without answering some of its questions in a way that determines that an EIS must be required.
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 that can 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 deny 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. By submitting informative public comments, citizens can affect the decision about whether impacts are "significant," and therefore justify alteration or disapproval of a project or a proposed land use law or regulation. 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
Step 1. 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 is a local land use regulation, the government body completes both parts. Even if the proposed action is not listed as a "Type I" action (assumed to require an EIS), 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 relevant areas of environmental concern that were identified during the review procedure as a whole.
A negative declaration ("neg-dec") may end the review process, since there is, according to the reviewing agency, 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.
Step 2. A positive declaration (that potential impacts may be significant) leads to the 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 draft versions of the EIS as incomplete and ask the project sponsor to address more impacts, address impacts in greater depth, look at more alternatives, or analyze the effect of proposed mitigations. The project sponsor should pay the costs to the reviewing agency of obtaining independent expert review and/or legal analysis of the DEIS. Part 617.9(a).
A draft EIS must be made available to the public, and once accepted by the agency as complete, the reviewing agency must provide a public notice that comments on the DEIS are formally 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.
Sometimes an agency issues a neg-dec without a public hearing, although it must still invite public comments in advance of issuing a neg-dec. 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 is available for Type II or Unlisted actions (but not Type I actions) when the decision-making body has identified "mitigations" to be performed by the project sponsor that would be required as conditions for approval. The conditions, if met, must reduce the environmental impacts, making them insignificant. Public comments may still identify deficiencies in proposed conditions/mitigations (that is, showing that the conditions will not actually make the impacts insignificant) or identify additional adverse impacts that have not been considered (these might be potential effects of the conditions). If public comments do either, an EIS should be prepared and then another public comment period on the draft 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 Part 617.11(d)(4) and (5).
SEQRA allows the reviewing agency to reject a draft EIS on the grounds that it is incomplete, deficient and in some areas erroneous. See Part 617.9(a)(2)(i). Specific deficiencies 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) is used to establish guidelines for a general category of projects, without establishing specific standards for individual possible projects. For example, it may be appropriate to prepare a GEIS where a town adopts a zoning overlay district for a whole industry, or a local law regulating a category of land uses, where no specific project has yet been proposed.
The SEQRA regulations allow use of a GEIS for the following types of agency actions:
(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. (Part 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 of a GEIS to project sponsors is that, “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.” (Part 617.10(d)(i)). A Supplemental EIS may be required after a GEIS has been completed, when a specific project is proposed, only where there are:
(a) changes proposed for the project;
(b) newly discovered information; or
(c) a change in circumstances related to the project.
Part 617.9(a)(7)(i).
