Summary of Developments Under New York's Environmental Quality Act

Governor Andrew Cuomo's State of the State address in January spoke of these efforts, and proposed to develop a comprehensive program to adapt to and prepare for extreme weather associated with climate change. He said that DEC will update and improve its maps of wetlands and coastal risk areas. He indicated the Department of State will recommend changes to the State Fire Prevention and Building Code that will increase climate resiliency. He said that State agencies will also lead by example with the implementation of individual adaptation plans based on the risks identified by the State Vulnerability Assessment. Finally, the governor announced that the State will provide financial support for state-of-the-art local resiliency plans to create a pipeline of projects to increase the flood resiliency of communities by protecting streams, coasts and critical infrastructure — such as hospitals, transit systems, bridges, water and wastewater infrastructure, dams, culverts and levees — as well as homes and small businesses. Interagency response teams will also conduct at least 40 emergency flood response trainings in communities across New York annually, he indicated.

Recent SEQRA Cases of Note

Of last year's SEQRA decisions from the courts, 19 upheld negative declarations (agency decisions not to require an EIS) and five annulled negative declarations. Eight upheld EIS's and two struck down EIS'sNew York's highest court, the Court of Appeals, issued one decision under SEQRA in 2017 — Friends of P.S. 163 v. Jewish Home Lifecare, Manhattan, 30 N.Y.3d 416 (2017). It concerned a proposed high-rise nursing home on a vacant lot on West 97th Street in Manhattan. Parents of students in an elementary school next door, and tenants in nearby apartment buildings, brought Article 78 proceedings against the State Health Department for approving the project. The State Supreme Court, New York County, annulled the approval on the grounds that the Health Department's EIS had not given enough consideration to two proposed mitigation measures: erecting a tent over the construction site to make sure that soil that might be contaminated with lead would not be blown into the neighborhood; and installing central air conditioning in the elementary school so that the windows could stay closed and construction noise would not disrupt student learning. The Appellate Division reversed, and the Court of Appeals agreed with the Appellate Division. The appellate courts both found that the Department of Health had taken a hard look at the possibility of airborne lead levels, and at the best methods to mitigate construction noise. This is in keeping with a long line of cases where the courts defer to the judgments of administrative agencies in matters within their expertise.