There’s some encouraging news to share with anyone who cares about the environment and believes that government decision-making should be well-informed and objective.  But there’s also no time for complacency, with a rapidly approaching May 11, 2018 deadline for submitting comments to New York’s Department of Environmental Conservation [DEC] – via email to seqr617@dec.ny.gov – to ensure continued forward progress.

The Good News

As I expressed in a Buffalo Law Journal article a year ago, the DEC – under the pretext of “streamlining” and “updating” regulations implementing SEQRA (State Environmental Quality Review Act) – was about to significantly weaken environmental protections and lessen the public’s role in zoning and land use decision-making.

The proposed regulatory changes issued by the DEC in February 2017 recommended a substantial increase in the categories of so-called Type II actions – the proposed projects and policy changes that do not have to undergo any SEQRA review – from the current 37 to 54.  By expanding the list of projects completely insulated from SEQRA review, the DEC’s proposed regulations would likely result in the following impacts:

• Decrease the information available to the public, as well as to the government decision-makers, to intelligently assess a proposed project’s potential impacts on the environment;
• Reduce the ability of a municipality or a concerned public to objectively consider a proposed project’s specific natural and manmade surroundings, or the existing neighborhood or community character, when determining whether a proposed project may have a negative environmental effect;
• Eliminate the obligation of a project sponsor or government agency to systematically consider alternatives and mitigation measures.

But something quite unusual happened in Albany.  The DEC allowed itself to be enlightened by the written and oral public comments it received last spring.  On April 4, 2018, the revised proposal for amending the SEQRA regulations was revealed.  Significantly, the latest iteration of proposed changes reduces the number of new “Type II” categories from 17 to 9.  Unless the inevitable push-back by developers and municipal “stakeholders” causes a reversal, the following types of proposed actions will not be treated as “Type II actions” and will still need to undergo environmental review under SEQRA:

– area variance applications to a city, town or village zoning board of appeals [other than the previously-excluded individual setback and lot-line modifications and area variances for one-, two- and three-family residences];

– brownfield clean-up agreements;

– acquisitions of less than 100 acres of land for parkland [although, as revised, an agency’s acquisition and dedication of 25 acres or less of land for parkland, or acquisition of a conservation easement, would be treated as a Type II action and not undergo SEQRA review];

– minor subdivisions;

– installation of cellular antennas or repeaters; and, perhaps most importantly,

– so-called “sustainable development” projects on a “previously disturbed site in the municipal center of a city, town or village”.

SEQRA’s “Cooperative Venture”

The DEC’s revised draft EIS for the proposed amendments to the SEQRA regulations is an excellent example of how the SEQRA environmental review process is intended to function.

More than three decades ago, New York’s highest court, the Court of Appeals, explained that “SEQRA makes environmental protection a concern of every agency [and] insures that agency decision-makers – enlightened by public comment where appropriate – will identify and focus attention on any environmental impact of a proposed action.”  [See Jackson v. NYS Urban Dev. Corp., 67 NY2d 400 (1986).]  That court accurately characterized the Environmental Impact Statement [EIS] process as “the heart of SEQRA … designed as a cooperative venture, the intent being that an agency have the benefit of public comment” before approving a proposed action.  As recognized by our state’s top jurists, “a primary purpose of a [draft] EIS is to inform the public and the public agencies … and to solicit comments which will assist the agency in the decision-making process.”

The public spoke – in the form of hundreds of written and oral comments – and the DEC was enlightened and pulled back on many of its most troubling proposals.

The fact that the SEQRA review process for the proposed regulatory changes worked precisely as envisioned by NY’s legislators when the statute was enacted is more than a bit ironic.  The DEC’s February 2017 proposal for “streamlining” and “updating” the SEQRA regulations (which are found at 6 NYCRR Part 617) by significantly adding to the “Type II” list of actions not subject to review under SEQRA was – from my perspective – little more than a capitulation by the DEC and Cuomo administration to pressures from the business community and government officials.  These “stakeholders” wished to eliminate what they perceive as two obstacles in the way of proposed development projects: public comment, and the objective information obtained when the SEQRA review process works as intended.

The SEQRA review process has – so far – reduced the number of new “Type II actions,” and, by doing so, has preserved the opportunities for the public to impact future development decisions by exerting the power that accompanies knowledge.

The Need for Immediate Action

With the May 11, 2018 deadline for submitting comments on the Revised Draft Generic Environmental Impact Statement looming near, here are a number of points that I recommend sending to the DEC – via email to seqra617@dec.ny.gov – to ensure protection of NY’s natural and man-made resources and preservation of the public’s ability to enlighten our government decision-makers:

1. The DEC’s removal of several categories of new Type II actions from the proposed changes to the SEQRA regulations is laudable. The DEC should resist any pressure to reinstate the eliminated categories.
2. The DEC has made the correct decision to require all future Environmental Impact Statements [EISs] (other than Supplemental EISs) to undergo the “Scoping” process. This proposal will help make certain that future EISs focus on potentially significant adverse impacts, and not irrelevant or non-significant impacts.
3. The proposed changes to the SEQRA regulations fail to take any steps to reverse the regrettable trend of agencies failing to meet the low threshold for requiring an EIS, the “heart of SEQRA.” As noted in the Revised DGEIS, there are only about 200 EISs being prepared annually statewide – despite the thousands of proposed actions under consideration by the state’s 1,500 local municipalities and the myriad of NYS departments, agencies and authorities obligated to comply with SEQRA.  Most troubling for Western New Yorkers, there were ZERO EISs required in 2017 throughout all of Erie County (including the City of Buffalo) and Niagara County, and only two EISs required in 2016 throughout the DEC’s entire six-county Region 9 (including Erie and Niagara counties).  The DEC must take effective steps to reverse this trend, and firmly instruct local and state agencies that it is their obligation to “insure that agencies will err on the side of meticulous care in their environmental review,” and not “cut corners and then cure defects only after protracted litigation, all at the ultimate expense of the environment.” [ See New York’s highest court’s decision in King v. Saratoga County Bd. of Supervisors, 89 NY2d 341 (NYCA 1996).]  At a minimum, the SEQRA regulations must be amended – perhaps as an introductory paragraph at Section 617.7 (Determining Significance) – to include the language contained in the SEQRA statute at ECL Section 8-0109(2):  “All agencies (or applicant as hereinafter provided) shall prepare, or cause to be prepared by contract or otherwise an environmental impact statement on any action they propose or approve which may have a significant effect on the environment.”  [Emphasis added.]
4. To ensure that any proposed action that may have a significant adverse impact on any one or more aspects of the environment undergoes the SEQRA review process, the DEC should follow the “no action” alternative and eliminate the remaining proposed additions to the Type II actions list.

With All Due Respect,

Art Giacalone