Judicial oversight in the environmental review process presents a regular zone of conflict both nationally and within New York State. Since the enactment of the National Environmental Policy Act (NEPA) in 1970, which spawned the subsequent enactment of state “Little NEPA’s,” questions of what issues must be analyzed, how substantive that review must be, and the degree of deference given to the agency conducting the review have continued to drive litigation, increasing the costs and dramatically expanding the schedule for projects requiring a discretionary governmental action. The New York Court of Appeals has long established that an agency’s assessment of environmental impacts pursuant to the New York State Environmental Quality Review Act, or SEQRA, is entitled to substantial deference, admonishing lower courts that it is not their role to substitute their judgment for the judgment of agencies undertaking the action.
Sometimes, however, lower courts give lip service to the deferential standard of review but fail to apply it, wading into technical debates and disputes and thereby creating substantial uncertainty with regard to agency approvals of both governmental and private projects. In December 2017, the New York State Court of Appeals re-affirmed its well-established precedent in its unanimous decision in Friends of P.S. 163 Inc. v. Jewish Home Lifecare, Manhattan, 30 N.Y.3d 416 (2017). The case relates to the construction of a new nursing home facility on an undeveloped lot on the Upper West Side of Manhattan. The issues at stake in this case — what standards should a lead agency use and the degree of analysis required for specific mitigation measures considered in an Environmental Impact Statement (EIS) — speak to two major substantive questions that regularly arise in the environmental review process.
SEQRA, enacted in 1975 and modeled on NEPA, requires state agencies to assess potential environmental impacts of any of their discretionary decisions. N.Y. Env. Conservation L. §8-0101, et seq. The statute and its attendant regulations provide a process for the agency with discretionary authority — known as the “lead agency” — to determine first whether a given action “may have a significant impact on the environment,” requiring the preparation of an EIS. The EIS then prepared must identify all relevant areas of environmental impacts and provide sufficient information for the lead agency to accurately assess the potential impact of a project prior to making its decision. Unlike NEPA, which simply requires the analysis of environmental impacts, SEQRA requires the agency to “act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects.” N.Y. Env. Conservation L. §8-0109 (1). Some commentators thus interpret SEQRA as imposing a substantive requirement to mitigate environmental impacts that is absent in NEPA; however, the substantive requirement to minimize or avoid adverse environmental impacts is softened by the agency balancing of such impacts against “social, economic and other essential considerations” permitted under the statute. SEQRA’s procedures provide substantial opportunities for public input, ensuring that all potential environmental concerns are addressed. N.Y. Env. Conservation L. §8-0109 (5). In addition, for actions undertaken in New York City, the New York City Law Department’s City Environmental Quality Review (CEQR) Technical Manual provides detailed technical guidance as to how specific environmental impacts should be assessed in the unique environment of a city of over 8 million people.
Petitioners here argued that the New York State Department of Health (DOH), the lead agency charged with complying with the SEQRA process, failed to do so in its preparation of an EIS, which was prepared in accordance with the CEQR Technical Manual. In December 2015, the Supreme Court found that “[a]lthough the record indicates that DOH followed proper SEQRA procedures … DOH, … did not take the requisite hard look at specific environmental issues.” 51 Misc. 3d 1225(A) at 20. Specifically, the court asserted that DOH improperly relied on the CEQR Technical Manual’s standards relating to temporary construction noise impacts and did not properly account for potential lead impacts when it utilized the National Ambient Air Quality Standards (NAAQs) for airborne lead during project construction. Id. at 20. Additionally, the court found that the EIS did not adequately assess additional measures to mitigate construction impacts, namely central air conditioning as an alternate source of ventilation in conjunction with the installation of noise attenuating windows and tenting of the project site to prevent migration of lead-containing dust. Id.
The Appellate Division reversed. Noting SEQRA’s deferential standard of review, the appellate court held that the lower court had “erroneously ‘substituted its analysis for the expertise of the lead agency’ simply because the agency rejected what the court considered to be better measures in mitigation.” 146 A.D.3d 576, 580-581.
Decision of the Court of Appeals
In its unanimous opinion, the Court of Appeals affirmed the decision of the Appellate Division, finding that “DOH took the requisite ‘‘hard look’ at [relevant areas of environmental concern] and made a ‘reasoned elaboration’ of the basis for its determination.’” 30 N.Y.3d at 427-428 (2017). Writing for the court, Judge Jenny Rivera found that it was not unreasonable for DOH to rely on either the NAAQs or the CEQR Technical Manual standards in reaching its conclusions and that it had acted “within its ‘considerable latitude in evaluating environmental effects and choosing among alternatives.’” Id. at 431 (2017). “Petitioners may have preferred DOH to adopt a different standard, but we cannot say DOH’s determination “was affected by an error of law or was arbitrary and capricious or an abuse of discretion” Id.
Additionally, the court rejected challenges relating to the mitigation measures selected by the lead agency, restating the long-established standard that “it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively” initially established by the decision in Matter of Jackson v. New York State Urban Development Corp., 67 N.Y.2d 400, 416-417 (1986). The court further held “that “DOH acted squarely within its statutory authority to choose among alternatives when it rejected the tent and adopted the measures it chose instead.” 30 N.Y.3d at 432.
The decision reaffirms the degree of deference afforded to lead agencies both in determining the standards with which to assess environmental impacts and in selecting mitigation measures for those impacts. That standard, established over thirty years ago, has been especially potent in leading to approval of SEQRA determinations where an EIS has been prepared. This is welcome news because it puts the weighing of adverse environmental impacts against the benefits of proposed projects where it belongs, in the hands of the SEQRA lead agency and not the courts. Additionally, this marks the first time the Court of Appeals has approved of an agency’s reliance on the standards outlined in the CEQR Technical Manual, the application of which had previously been approved by both the First and Second Departments of the Appellate Division. As a result, lead agencies and developers in New York City will have significantly more clarity that application of the technical standards found in the CEQR Technical Manual in conducting environmental reviews will be met with approval by courts applying SEQRA’s deferential standard of review.
***** Steven C. Russo chairs Greenberg Traurig, LLP’s New York Environmental Practice. He focuses his practice on environmental law and litigation, environmental permitting, National Environmental Policy Act (NEPA), State Environmental Quality Review Act (SEQRA) review, toxic tort litigation, environmental crimes, Brownfields redevelopment, government, energy and the environmental aspects of land use and real estate law. Evan Preminger is an associate with Greenberg Traurig. He focuses his practice on environmental and government relations matters. He has experience in litigation arising under the Clean Water Act, the National Environmental Policy Act, the New York State Environmental Quality Review Act (SEQRA), and the Comprehensive Environmental Response, Compensation and Liability Act (Superfund).
The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.