SEQRA: effective weapon, if used directed.

• Author: Weinberg, Philip
• Position: State Environmental Quality Review Act - New York

INTRODUCTION

After a quarter of a century, the State Environmental Quality Review Act (1) (SEQRA) is firmly in place as an integral part of New York's governmental landscape. It has furnished an absolutely vital fulcrum from which the public can participate in--and if necessary challenge--decisions inflicting environmental impacts on local communities. This statute has bolted the door forever on the notorious era when state and local governments could make land-use decisions in the proverbial smoke-filled room, injuring communities with impunity, exemplified by the oft-quoted line of that consummate builder, Robert Moses, that "[o]nce you sink that first stake, ... they'll never make you pull it up." (2)

SEQRA has halted---or significantly reduced the impact of--numerous actions of New York State and local government agencies, including shopping mall rezonings, highways, sports stadiums, and large-scale residential subdivisions. (3) The litigated decisions are but the tip of the iceberg; many more agency determinations have been modified to mitigate their environmental impacts without--or in order to avert--SEQRA litigation.

Yet, like most statutes aimed at complex problems, SEQRA is not a panacea. There are several respects in which it could be more effective. (4) This brief article is intended to focus on the most salient.

SCOPE OF JUDICIAL REVIEW

First, the courts accord great deference to agency decisions involving the exercise of discretion. (5) After a series of early decisions overturning land-use determinations where agencies ignored SEQRA procedure entirely, (6) or blatantly violated the Act's procedures, (7) local governments learned--some more quickly than others--that courts would not hesitate to step in where SEQRA was sidestepped. (8) But, as long as agencies follow SEQRA's procedures, i.e., preparing environmental impact statements (EISs) and weighing alternatives and measures to mitigate harms, (9) courts are reluctant to interfere with the actual determinations governments make.

For example, in Jackson v. New York State Urban Development Corp., (10) the Court of Appeals rejected claims that an EIS for a major office building redevelopment around Manhattan's Times Square failed to consider the gentrification and displacement of existing residents that would likely occur (11) (and in fact has). (12) This judicial attitude stems from a long history of judicial deference to administrative bodies' expertise, based on the constitutional separation of powers and the hesitancy of judges to substitute their judgment for that of the executive branch. (13) This has led, in some SEQRA cases, to the courts upholding local government permits for large-scale development, despite the likelihood of severe impacts on traffic, water supply, sprawl and related concerns. (14)

It is proper for the judiciary to defer to presumably expert--and responsible--government agencies when reviewing those bodies' decisions. (15) But this deference places a heavy burden on those administrative agencies--planning boards, town boards, highway departments, and the like--to genuinely take environmental issues into account, and not simply rubber-stamp projects with serious impacts. It also means citizens must be prepared to furnish persuasive factual proof of potential environmental harms when opposing a development. (16) In the end, greater sophistication and organization among citizen groups are the best means of making SEQRA work, and, in the long run, of convincing elected officials that responsiveness to environmental concerns is good politics. (17) But in addition, the courts ought not hesitate to annul agencies' actions that neglect SEQRA's mandates nor should they or defer unduly to agencies' expertise where environmental concerns have been given short shrift. (18) As the Second Circuit memorably held in Scenic Hudson Preservation Conference v. Federal Power Commission, (19) a landmark early environmental decision, agencies ought not "to act as an umpire blandly calling balls and strikes for adversaries appearing before [them]; the right of the public must receive active and affirmative protection at the hands of the [agency]." (20)

CUMULATIVE IMPACT REVIEW

SEQRA enables greater public participation in government decision-making, (21) and as Justice Brandeis long ago noted, "[s]unlight is said to be the best of disinfectants." (22) Although SEQRA cannot by itself force enlightened planning, it has been used, and, should be used more often, to require agencies to consider the cumulative impact of related actions. (23) One wise Court of Appeals decision, Save the Pine Bush, Inc. v. City of Albany, (24) required the City of Albany to weigh the overall effect of permitting numerous individual buildings in the Pine Bush area of the City of Albany. (25) Another ruling, Village of Westbury v. New York State Department of Transportation, (26) insisted that the State agency examine the impact of redesigning a major Long Island highway interchange on the roads of a nearby village where a highway leading to that interchange would not be widened until later. (27)

But some later court decisions have not required agencies to look at such cumulative impacts. Long Island Pine Barrens Society, Inc. v. Planning Board (28) held that the...