Editors Note-After a decades old war by certain sectors of the “pay to play” private development community on the State Environmental Quality Review Act SEQRA, it looks like new rules are going to bring this critical environmental and social protection tool to its knees. It is after all, the Age of the anit-regulatory Trump-o-mania, and it is revealing and sad that his home state, New York, which once was a national leader in environmental protection, is now leading the way to the abolishment of environmental sageguards. The proposed new SEQRA rules makes NY way ahead in the game of de-regulating environmental concerns in favor of more unfettered development and profit taking. We know where our leaders stand. These new rules will effect how buildings, infrastructure, and energy pipelines are built. Abolishing protections and environmenal and communicty character are, well, almost vanished.
Today we bring you a piece by one of New Yorks most accomplished SEQRA attorneys and one of our most important fighters for SEQRA, Art Giacalone. Your comments on this article are encouraged and welcomed. You can see the original article at Mr. Giacalone’s Blog “With All Due Respect” -Jay Burney
Proposed SEQR Regulations: developers and SEQRA-adverse agencies win, the environment and public lose
By Arthur Giacalone
When a government agency talks about “streamlining” environmental regulations, and increasing “speed and efficiency” and “regulatory certainty for applicants and municipalities,” you can be certain that the effect (if not the conscious intent) will be decreased environmental protections and a reduction in the public’s ability to meaningfully participate in the decision-making process. That is precisely what will occur if the current version of the New York State Department of Environmental Conservation’s proposed amendments to the State Environmental Quality Review Act’s regulations are adopted without significant changes.
The last thing New York should be doing is weakening its environmental review process when – on the national level – the Trump Administration is intent on repealing environmental regulations, weakening environmental enforcement, and allowing more fossil fuel production. [For example, see this and this.] If you agree that NYS should be strengthening, not undermining, its environmental laws, I urge you to analyze the proposed amendments to the SEQR regulations, submit written comments by May 19, 2017 to the New York State Department of Environmental Conservation, Division of Environmental Permits, Attn: James J. Eldred, Environmental Analyst, 625 Broadway, Albany, New York 12233-1750 or by e-mail to: firstname.lastname@example.org, and, if possible, participate at the public hearing to be held on March 31, 2017 at 1:00 pm at 625 Broadway, Albany, New York, Public Assembly Room 129.
A discussion of ten of my biggest concerns follows below. If you agree with any or all of the comments I raise, or if you have other concerns relating to either the Draft Generic Environmental Impact Statement (DGEIS), or the proposed amendments to the SEQR regulations, please let the DEC know. Also, if you click here you can read my “sticky notes” reflecting my initial thoughts on the proposed amendments: seqr-regs-proposed-revisions-ajg-sticky-notes-02-22-17
[Note: I use “SEQRA” to refer to the legislation, that is, the State Environmental Quality Review Act, enacted in 1975 and found at Article 8 (Environmental Quality Review) of New York State’s Environmental Conservation Law, and “SEQR” when referencing SEQRA’s implementing regulations found at 6 NYCRR Part 617 (State Environmental Quality Review).]
1. THE primary motivation behind the proposed amendments appears to be a desire to add categories of projects and activities not subject to review under SEQRA. The DEC’s SEQR rulemaking continues the same trajectory it has been on for decades: substantially increasing the types of actions and projects that do not have to undergo any SEQRA review (“Type II actions”), while identifying no new categories of activities presumed to have a significant adverse environmental impact and require an environmental impact statement (“Type I actions”).
Under SEQR, there are three categories of “actions” or projects: “Type I actions” which carry with them a presumption that they are likely to have a significant adverse impacts on the environment and, therefore, may require the systematic environmental analysis embodied in an “Environmental Impact Statement” [EIS]; “Type II actions” which are actions or projects the DEC has determined will not have a significant impact on the environment, and, therefore, are not ever subject to review under SEQRA; and, “Unlisted actions” which are all actions not identified as a Type I or Type II action, and which, therefore, must undergo the SEQR review process (but, do not carry with them a presumption that an EIS may be required).
The 1987 SEQR regulations contained 12 categories of “Type I actions” bearing a presumption that they will significantly impact the environment and require an EIS, and 21 categories of “Type II actions” which do not have to undergo any SEQR review. The 1996 SEQR regulations – currently in effect – contain 11 categories of “Type I actions” and 37 categories of “Type II actions.” The DEC’s proposed amendments hold the “Type I actions” to 11 categories, but increase the “Type II actions” to 54 categories – an increase of 46% from the current regulations, and 157% from the 1987 version (despite no substantive changes to the enabling SEQRA legislation).
One need look no further than the “Needs and Benefits” statement in the DEC’s DGEIS to confirm what a reading of the proposed regulatory changes reflects: the primary motivation for the proposed amendments is to expand the “Type II” list:
Needs and Benefits
The last major amendments to the SEQR regulations occurred two decades ago. This rule making is intended to update the SEQR regulations with additional Type II actions, i.e., adding more actions to the list of actions not subject to further review under SEQR, and with other changes more fully described in the express terms and accompanying environmental impact statement…
DGEIS, p. 54. Although SEQRA’s legislative purpose and mandates have not changed, the DEC has chosen to please local government agencies and project sponsors who want less and less environmental review, and has justified expansion of the Type II list by proclaiming that the “reduced SEQR workload” will occur “at no cost to the environment.” [DGEIS, p. 12]
2. By substantially increasing the types of projects on the “Type II actions” list, the DEC’s proposed SEQR regulations substantially decrease the information available to the public – as well as to the government decision-makers – to determine a proposed project’s potential impacts on the environment. It also eliminates a government agency and project sponsor’s obligation to systematically consider alternatives and mitigation measures.
A project or class of actions placed on the SEQR regulations “Type II” list will never have to face the scrutiny associated with the “environmental impact statement” [EIS] process. As the current SEQR regulations explain: “An EIS provides a means for agencies, project sponsors and the public to systematically consider significant adverse environmental impacts, alternatives and mitigation.” [6 NYCRR Section 617.2(m)] The primary purposes of an EIS is “to inform the public” and other public agencies as early as possible about a proposed action that may significantly affect the quality of the environment, and “to solicit comments” which will assist the lead agency in determining the environmental consequences of the proposed action. [ECL Section 8-0109(4)]
But it is not only the EIS process that is eliminated by placement of an action on the Type II list. According to the current and proposed SEQR regulations, if he action is a Type II action, the agency’s only responsibility under SEQRA is to identify the fact that it is on the Type II list and, is, therefore, not subject to SEQR. “The agency has no further responsibilities.” [6 NYCRR Section 617.6(a)(i)] The project sponsor has no obligation to fill out and submit to the local or state agency the “environmental assessment form” [EAF] – a form used by an agency to assist it in determining the environmental significance or nonsignificance of actions. As noted in the current SEQR regulations, a properly completed EAF provides enough information to describe the proposed action, its location, its purpose and its potential impacts on the environment. [6 NYCRR Section 617.2(m)] There is no analogous information-gathering tool mandated under state law to ensure that equivalent information is available for consideration by the public and agencies when a proposed project is not subject to SEQR review.
Knowledge is power. Depriving the public of the information contained in an EAF, much less an EIS, substantially diminishes the public’s opportunity to be fully informed, and its ability to meaningfully comment on a proposed project. As a result, the public’s ability to influence the decision-making process is significantly reduced – precisely the goal of a project sponsor (and, sadly, many government agencies and officials). The public and the environment suffer, while the project sponsor and government agency enjoy a “speedy and efficient” approval process.
3. Although the Environmental Impact Statement [EIS] is “the heart of the SEQRA process,” and only 200 EISs are prepared statewide on a yearly basis, the DEC’s proposed regulatory changes do nothing to motivate or compel state and local agencies to comply with the letter and spirit of SEQRA.
New York’s appellate courts have long recognized that an EIS is “the heart of the SEQRA process.” They have also held repeatedly that the threshold for requiring preparation of an EIS is “relatively low.” The critical role of the EIS in the environmental review process, and the significance of public access to the information, was explained by the Appellate Division, Third Department in Shawangunk Mountain Environmental. Assn. v. Planning Board of Town of Gardiner, 157 AD273, 275-276 (AD3 1990):
… The EIS process is especially designed to insure the injection of full, open and deliberative consideration of environmental issues into governmental decision making. The EIS process guarantees comprehensive review of a project’s adverse environmental effects, consideration of less intrusive alternatives to the proposed action, including “no-action”, and consideration of mitigation measures. To assure accountability of the lead agency and avoidance of any oversight in that agency’s assessments, the regulatory scheme requires public access to the information by making the draft and final EIS available with sufficient lead time to afford interested persons an opportunity to study the project, its environmental effects and proposed mitigating measures, and then comment thereon. Additional safeguards are found in the substantive requirements that the lead agency must act and choose among alternatives so as to minimize adverse environmental consequences, consistent with other social, economic and policy considerations, and must then make appropriate written findings to that effect.
Despite the vital importance of the environmental impact statement process to the goals of SEQRA, the DEC’s proposed amendments do nothing to encourage lead agencies to comply with the statutory mandate that, “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.” [ECL Section 8-0109(2)] [Emphasis added.]
As noted in the DGEIS, “only about 200 EISs are prepared on a yearly basis for tens of thousands of actions that are presumably the subject of a negative declaration.” [DGEIS, p. 58] This notably minute number of EISs per year, given the “relatively low threshold” for requiring one and the tens of thousands of actions subject to SEQRA, is underscored when one considers that New York state has more than 1,500 local municipalities (cities, towns, and villages), in addition to a myriad of state departments, agencies, and authorities each obligated to comply with SEQRA. According to the DEC’s-EIS-statistics from 1985 through 1995, there was an average of approximately 350 EISs prepared annually two decades ago, and the number of EISs – especially those prepared at the request of local agencies – began decreasing dramatically in the 1990s. One might anticipate that the agency entrusted with the responsibility of adopting rules and regulations implementing the State Legislature’s intent when it enacted SEQRA would be troubled by the precipitous decline in the number of proposed projects undergoing the comprehensive review envisioned by SEQRA, and take steps to reverse the trend. Not the DEC.
The proposed SEQR regulations provide neither carrot, nor stick, to reverse the increasingly bold disregard – by state and local agencies – of the requirements of SEQRA. [For just a few examples, see this post, and this article: buffalo-law-journal-05-21-12-publication-of-ajgs-seqra-op-ed ] Wholly absent is any effort to “insure that agencies will err on the side of meticulous care in their environmental review,” as called for by New York’s highest court. Rather, we have a toothless regulatory framework that will continue a situation where government agencies and project sponsors have “an incentive to cut corners and then cure defects only after protracted litigation, all at the ultimate expense of the environment.” [See King v. Saratoga County Bd. of Supervisors, 89 NY2d 341 (NYCA 1996).]
As it has done in the past, the DEC has rejected requests to establish a board or council to review SEQR decisions made by state and local lead agencies. Here’s the justification given for not considering these requests (and, in doing so, leaving only costly judicial intervention as the remedy available when SEQRA’s mandates appear to have been ignored): “This issue has been rejected because it is outside of the scope of this regulatory action. Establishing a board or council that could issue a binding decision would require legislation and a change to Article 8 of the Environmental Conservation Law.” [See Final Scope, p. 14.] [Emphasis added.]
As the following point shows, the DEC does not seem to as concerned about not exceeding its rulemaking powers when expanding the Type II list – and, thereby, weakening the SEQR review process.
4. Contrary to its own rulemaking authority, the DEC has improperly used the SEQR regulation as a tool for “incentivizing” redevelopment and alternative energy projects by identifying numerous categories of activities as “Type II actions” exempt from environmental review under SEQRA.
SEQRA gives the State’s Commissioner of Environmental Conservation the authority pursuant to Section 8-0113(1) of the Environmental Conservation Law [ECL] to “adopt rules and regulations implementing the provisions” of – no surprise – Article 8 (Environmental Quality Review) of the ECL. Therefore, the purpose of the SEQR regulations is to implement the intent and requirements of SEQRA, not to implement or further other State laws or policies. The DEC’s proposed amendments ignore this statutory limitation on the Commissioner’s rulemaking powers.
The Final Scope adopted by the DEC in 2012 in furtherance of its desire to amend the SEQR regulations, while expressing its reasons for its broad expansion of the Type II list, reflects the DEC’s failure to respect the boundaries of its authority under SEQRA:
… A second and more important reason for many of the proposed additions to the Type II list is to try and encourage environmentally compatible development. Many of the additions attempt to encourage development on previously disturbed sites in municipal centers with supporting infrastructure and encourage green infrastructure projects and solar energy development. Others proposed items will remove obstacles encountered by municipalities when developing affordable housing in cooperation with not-for-profit organizations. The overall goal is to provide a regulatory incentive for project sponsors to further the State’s policy of sustainable development. [See Final Scope, p. 5.]
Smart growth, sustainable development, green infrastructure, etc. may be worthwhile goals, but they should not be promoted at the expense of the environmental review process mandated by SEQRA. For the DEC to expand its Type II list to encourage such development exceeds the DEC Commissioner’s authority under SEQRA, and creates a myriad of concerns, including, without limitation, the following:
** The DGEIS relies on “the potential benefits of directing growth into existing municipal centers” when explaining the rationale behind many of its proposed new Type II categories. [DGEIS, p. 27] However, the DEC has long-expressed the principle that, “The determination of significance is a threshold determination which should not balance benefits against harm, but which should consider whether a proposal has any probable significant adverse impacts. [Balancing social and economic benefits] may only be done in Findings following an EIS.” [See THE SEQR HANDBOOK, 3rd Edition (2010), p. 79 (Emphasis added).] To effectuate the purposes of SEQRA, this principle should apply equally to the decision by DEC to determine categorically that classes of actions do not have a significant impact on the environment.
** The DEC argues that building a structure on a previously disturbed lot with existing road, sewer and water infrastructure substantially reduces the number and severity of potential impacts that must be considered in an environmental review. Similarly, it claims that generally when properties have existing infrastructure “the suite of environmental issues is very limited.” These assertions disregard a basic principle: An EIS must be prepared if a proposed action “may include the potential for at least one significant environmental impact.” [6 NYCRR Section 617.7(a)(1)] [Emphasis added.] A class of actions should never be added to the Type II list if it is foreseeable that in some instances – depending on the configuration of the parcel, or nearby manmade or natural resources – one or more aspects of the environment, including non-physical elements in SEQR’s definition of “environment” such as aesthetics or existing neighborhood or community character, may be adversely impacted.
** The DEC attempts to justify its encouragement of developing existing sites in municipal centers by pointing to the state’s “Smart Growth Public Policy Infrastructure Act” [“Smart Growth Act”] found at Article 6 of the Environmental Quality Review Act. The express “purpose” of the Smart Growth Act is “to augment the state’s environmental policy,” not to weaken laws such as SEQRA. Not only is this “policy” not part of the ECL Article 8 provisions underpinning the DEC’s SEQR rulemaking authority, the introduction to the “smart growth public infrastructure criteria” expressly mandates that state agencies “meet( ) other criteria and requirements of law governing approval, development, financing and state aid for the construction of new or expanded public infrastructure.” [ECL Section 6-0107(1)] Compliance with SEQRA’s mandates is one of such “requirements of law.” Additionally, the most effective way to effectuate one of the Smart Growth Act criteria – “to protect, preserve and enhance the state’s resources, including agricultural land, forests, surface and groundwater, air quality, recreation and open space, scenic areas, and significant historic and archeological resources” [ECL Section 6-0107(2)(d)] – is to conduct the site-specific environmental assessment required under SEQRA and its regulations.
5. The protections currently provided to historic buildings, sites and districts listed (or deemed eligible for listing) on the National Register of Historic Places, whenever proposed projects are located within or contiguous to the historic resource, are greatly diluted under the proposed amendments to the SEQR regulations.
Through use of the “Type I” list – which creates a presumption that a proposed action “is likely to have a significant adverse impact on the environment” – the current version of the SEQR regulations provides some legal protection to historic resources impacted by a proposed project occurring within or substantially contiguous to a historic building, site or district listed (or, deemed eligible for listing) on the National Register of Historic Places. Currently, the size or scale of the proposed project or activity does not matter. [6 NYCRR Section 617.4(b)(9)] That would change substantially if the proposed amendment becomes law.
As proposed, only a project “that exceeds 25 percent of any threshold established” in the SEQR regulation’s Type I list would be deemed a “Type I action” carrying with it a presumption that an Environmental Impact Statement may be required. [See proposed Section 617.4(b)(9).] For example, to be treated as a Type I action, the proposed action would have to involve: the rezoning of at least 6.25 acres; construction of 250 residential units in a municipality with a population greater than 150,000 but less than a million, or 625 units in a city with a population of one million or more; for a non-residential activities, physical alteration of at least 2.5 acres, or parking for 250 vehicles, or, in a municipality with more than 150,000 residents, construction of a facility exceeding 60,000 gross square feet.
Of equal or greater concern, the proposed amendments add to the list of Type II actions exempt from SEQR review construction, without regard to whether the project involves demolition or if the site includes or is substantially contiguous to a designated or eligible historic structure or district, construction of a residential or commercial building up to 40,000 square feet of gross floor area, if no change in zoning or a use variance is required, and the parcel is in the downtown area of any city or town having at least 250,000 residents (including Buffalo) within a quarter mile of a commuter rail station or within a transit-oriented zoning district. [See proposed Section 617.5(c)(22).]
6. The proposed amendments make “acquisition of less than one hundred acres of land for parkland” a Type II action exempt from SEQR review, whether the land is to be used for active or passive recreational activities, and whether or not all or a portion of the land is a significant wildlife habitat or possesses sensitive environmental features.
As proposed, Section 617.5(c)(45) of the SEQR regulations would classify “acquisition of less than one hundred acres of land for parkland” a Type II action not subject to SEQR review. To allow acquisition of up to 100 acres of parkland to be exempt from SEQR review can easily lead to segmentation and a failure to consider likely environmental impacts at the earliest possible time, disregarding two important mandates of SEQRA. Furthermore, 100 acres is a large piece of land – especially in an urban area. If situated along or near a shoreline or natural habitat, the land proposed for acquisition could include, or be adjacent to, ecologically sensitive areas that could be adversely impacted by a broad array of potential activities that could occur in a so-called “parkland” – from nature walks, to organized sports, to large, loud gatherings. These issues call for an informed discussion and assessment of options and potential impacts PRIOR TO acquisition. By eliminating SEQR review at the acquisition stage, the public’s ability to have a meaningful role in the decision-making process could be adversely impacted.
7. Although the DEC recognizes that “location does matter” when one considers a project’s environmental impacts, the proposed expansion of categories included in the Type II list substantially reduces the ability of a municipality or a concerned public to take into consideration a proposed project’s specific natural and manmade surroundings, or the existing neighborhood or community character.
The DEC recognizes that “location does matter” when one considers a project’s environmental impacts. [DGEIS, p. 27] Nonetheless, many of the provisions in the proposed version of the SEQR regulations disregard substantial distinctions between locations of a proposed project which would result in environmental impacts disparate in scale and character. Here are but three examples:
** The City of Buffalo, with its population of 258,703, is treated the same as New York City, with its 8,550,405 residents, regarding construction of a residential or commercial building with a gross area of less than 40,000 square feet on land in “a municipal center” where a prior building has been abandoned or demolished. [See proposed Section 617.5(c)(22).]
** Likewise, the “Type I” threshold – triggering the presumption that it will have a significant impact on the environment – for construction of non-residential parking spaces is 1,000 vehicles for all municipalities having a population of 150,000 or more, including Buffalo and NYC.
** Similarly, the “Type I” threshold – triggering the presumption that it will have a significant impact on the environment – for construction of non-residential facility is 240,000 square feet of gross floor area for all municipalities having a population of 150,000 or more.
8. Despite the fact that State law mandates that a Zoning Board of Appeals comply with SEQRA and its implementing regulations, and consider whether a proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district, a proposed amendment to the SEQR regulations would exempt from the SEQR review process virtually all applications for “area variances” where the zoning code or ordinance (such as Buffalo’s newly adopted “Green Code”) does not regulate density.
New York’s statutory law defines “area variance” as the authorization by the zoning board of appeals [ZBA] for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations. The granting of variances is the most prominent power exercised by a municipality’s ZBA. To ensure that ZBAs systematically consider the potential environmental impacts of its decisions, state law expressly mandates that ZBAs “shall comply with the provisions of the state environmental quality review act and its implementing regulations.” [See, for example, General City Law Section 81-a(11).] Additionally, state statutory law directs a ZBA to consider “whether a proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district” when deciding whether to grant or deny an area variance. [See, for example, GCL Section 81-b(4)(b)(iv).]
Despite the State Legislature’s clear intent that SEQRA be an integral part of a ZBA’s “area variance” determination, the following proposed amendment would exempt from SEQR review virtually all applications for area variances in municipality’s where the zoning code or ordinance (such as Buffalo’s newly adopted “Green Code”) does not regulate density: Section 617.5(c)(17): “granting of area variances not involving a change in allowable density and lot-line adjustments.” There is no valid justification for this proposal, and it should be deleted in its entirety.
9. The blanket exemption from SEQR review of the “reuse of a commercial or residential structure where the activity is consistent with the current zoning law or ordinance” inappropriately ignores the significance of location and existing neighborhood character when determining whether a proposed action may have a significant environmental impact.
The DEC proposes to add the following massive category to the Type II actions” list: Section 617.5(c)(23): “in a city, town or village with an adopted zoning law or ordinance, reuse of a commercial or residential structure where the activity is consistent with the current zoning law or ordinance.” This category is too broad, and could leave nearby residents and property owners facing significant adverse impacts. For example, in a city such as Buffalo, which has just enacted a new zoning code that focuses on “form” and greatly expands allowable uses in many zoning districts, structures that had been used for primarily residential purposes could, without SEQR review, be converted to predominantly commercial usage without an informed assessment of the impacts on nearby properties, traffic levels, etc. Similarly, if an existing building has been vacant for a substantial period of time, re-use could have a significant impact on the character of the neighborhood, noise, traffic patterns, privacy, etc.
A similar proposal was championed by business and government “stakeholders” prior to enactment of the 1996 version of the SEQR regulations. It should be rejected again.
Note: Also see the discussion following point “7” above.
10. The DEC’s presumptions that local agencies will conscientiously address adverse environmental impacts resulting from projects newly exempt from SEQR review through the municipal land use review process (that is, comprehensive planning, zoning and special use permits, site plan review, etc.), and that government decision-makers and the public will have access to adequate information and data when assessing the potential impacts of a project, are belied by the pre-SEQRA history of government decision-making, the decades-long resistance against the SEQR review process, and the government and business “stakeholders” enthusiastic support for the expanded Type II list.
The State Environmental Quality Review Act was enacted in 1975. Its adoption was met with resistance and, at times, hostility from local and state officials (who resented having to deal with analysis and data intended to lead to an informed decision on proposed policies, projects, and activities, compelled government agencies to explain their actions, and empowered citizens), and from the business community (who opposed a process that added costs, slowed down the approval process, and empowered citizens).
Then-Governor Hugh Carey’s memorandum approving the 1975 legislation explained the crucial need for the environmental review law and the critical role it was intended to play:
… In recent years it has become abundantly clear that state and local agencies have not given sufficient consideration to environmental factors when undertaking or approving various projects or activities… The information provided by the impact statement will allow state and local officials to intelligently assess and weigh environmental factors, along with social, economic and other relevant considerations in determining whether or not a project or activity should be approved or undertaken…
The depressingly low number of EISs being prepared by the State’s 1,500+ towns, villages, and cities [see the discussion following point “3” above], the persistent lobbying over the decades by local (and, state) agencies to “streamline” the SEQRA review process [despite the infinitesimal percentage of actions subjected to the EIS process], and the current enthusiasm of government and business “stakeholders” for the expanded Type II list, reinforces my belief – informed by 28 years of practicing land use and environmental review law – that a SEQRA-less review process will adversely impact the environment, and decrease the role of residents in determining how their community’s will be developed.
With All Due Respect,
Arthur J. Giacalone