How Environmental Review Can Generate Car-Induced Pollution: A Case Study

Author:Michael Lewyn
Position:Associate Professor, Touro Law Center. Wesleyan University, B.A.
Pages:16-22
 
CONTENT
16 SUSTAINABLE DEVELOPMENT LAW & POLICY
HOW ENVIRONMENTAL REVIEW CAN GENERATE
CAR-INDUCED POLLUTION: A CASE STUDY
By Michael Lewyn*
I. INTRODUCTION
The National Environmental Policy Act (“NEPA”)1
requires federal officials to draft an environmental
impact statement (“EIS”) describing the environmental
impact of proposed federal actions that significantly affect the
environment, as well as analyze the environmental impacts of
alternatives to the proposed action.2 Almost two dozen states
have adopted “little NEPA” statutes imposing similar require-
ments upon state and/or local governments.3
This article focuses on one of the strictest little NEPA
statutes: New York’s State Environmental Quality Review Act
(“SEQRA”).4 While most little NEPA statutes cover only gov-
ernment projects,5 SEQRA also covers private sector projects
requiring municipal permits.6 Furthermore, SEQRA requires the
government to consider both environmental and social impacts
of its actions,7 unlike NEPA8 and about half of the existing little
NEPA statutes.9
This article contends that the stringencies of SEQRA occa-
sionally have harmful environmental consequences because
SEQRA can easily be used to delay “infill development”—that
is, development in already-developed areas such as cities and
older suburbs. When this occurs, development may shift from
older areas to “greenfields,” newer suburbs that tend to be more
dependent on automobiles and thus to produce more pollution.
Part II of this article introduces readers to SEQRA. Part
III shows how SEQRA discourages infill development. Part IV
explains that because greenfield sites tend to be in areas with
little public transit, generating more automobile traffic than infill
sites, SEQRA’s bias towards greenfield development is environ-
mentally harmful. Part V suggests possible reforms to SEQRA,
including borrowing from California’s little NEPA law.
II. A BRIEF GUIDE TO SEQRA
The federal government enacted NEPA in 197010 to
ensure that federal agencies considered the potential environ-
mental impact of their actions.11 The White House Council on
Environmental Quality (“CEQ”) has promulgated regulations
that implement NEPA’s provisions.12 Under these regulations,
the agency proposing and/or permitting the action, known as
the “lead agency,13 will typically14 begin the environmental
review process by preparing an Environmental Assessment
(“EA”), a document which “[b]riefly provide[s] sufficient
evidence and analysis for determining whether to prepare an
environmental impact statement.”15 If after drafting the EA the
lead agency decides that its actions will not create a significant
environmental impact, it will issue a “Finding of No Significant
Impact” (“FONSI”) instead of an EIS.16
On the other hand, if the lead agency decides that its actions
might create a significant impact,17 it requests comments from
the public and other government agencies asking what issues it
should study in the EIS.18 After reviewing these comments, the
agency prepares a draft EIS19 and—after soliciting additional
public comment—a final EIS.20 The EIS must address not only
the environmental impacts of the proposed action but also any
possible alternatives to the proposal.21
New York state’s little NEPA statute, SEQRA, is almost
as old as NEPA; it was enacted in 1975 and became effective
the following year.22 Just as NEPA is designed to make federal
action more environmentally sensitive, SEQRA is designed to
make state government more environmentally sensitive.23 Unlike
NEPA, however, SEQRA applies not only to state government
action but also to actions by local governments,24 including
rezonings25 and other land use-related permits.26
Like NEPA, SEQRA creates a multi-step environmental
review process. The lead agency begins the process by drafting
an environmental assessment form (“EAF”) to determine how its
proposed action will affect the environment.27 If the lead agency
concludes that environmental impacts from its action are unlikely
to be significant, it drafts a “negative declaration” which, like a
FONSI, declares that “implementation of the action as proposed
will not result in any significant environmental impacts.28
But if the environmental assessment identifies potentially
significant environmental impacts, the agency issues a “positive
declaration” announcing that the impacts require an EIS.29 The
state agency then begins the “scoping process”30 designed to
produce an EIS. This process begins when the agency prepares a
draft EIS and solicits public comments on that document.31
After receiving public comments on the draft EIS, the
agency issues a final EIS.32 If circumstances change or if the
agency alters the project, the agency may also issue a supple-
mental EIS.33 The final EIS must address the adverse impacts of
the proposed action, including but not limited to: growth-induc-
ing impacts, impacts upon energy use and conservation, and
impacts on solid waste management; any reasonable alternatives
to the proposed action; and any commitments of environmental
resources, such as land or construction materials34 associated
*Associate Professor, Touro Law Center. Wesleyan University, B.A.; University
of Pennsylvania, J.D.; University of Toronto, L.L.M. The author would like to
thank Albert Monroe, Leon Lazer, Gregory Alvarez, and Peter Appel for their
helpful comments. The author also notes that a shorter article on this topic is
published at 27 Mun. Lawyer 16 (2013).
17WINTER 2014
with the proposed action.35 In addition, a final EIS must address
all comments on the draft EIS, as well as any project changes,
new information, and changes in circumstances since the issu-
ance of the draft EIS.36 Before proceeding with the proposed
action the agency must certify that the action minimizes adverse
environmental impacts to the maximum extent practicable and
that the agency will use any mitigating measures identified as
practicable in the EIS.37 Citizens may challenge an agency deci-
sion, including either an EIS or a decision not to issue an EIS,
under SEQRA.38
New York’s Department of Environmental Conservation
(“DEC”) has enacted regulations to guide state and local govern-
ments in deciding whether to issue an EIS.39 These regulations
provide that for “Type I”40 government projects, a rebuttable pre-
sumption exists that the project creates environmental impacts
significant enough to require the preparation of a full EIS.41 For
example, Type I actions include all zoning changes affecting
twenty-five or more acres.42
On the other hand, the regulations categorically exclude
thirty-seven types of actions, known as “Type II” actions, from
SEQRA scrutiny.43 For example, zoning decisions affecting just
one house are usually Type II actions.44 Government actions
that are neither Type I nor Type II are labeled by the regulations
as “unlisted actions”45 and may require an EIS if they create a
significant impact.46 The overwhelming majority of government
actions subject to SEQRA are unlisted.47
In addition to creating the Type I/Type II/unlisted hier-
archy, SEQRA differs from NEPA in another major48 respect.
NEPA is limited to actions affecting “the quality of the human
environment”49—a phrase that courts have limited to “effects
on the natural or physical environment.50 By contrast, SEQRA
defines the relevant “environment” not just as “the physical con-
ditions which will be affected by a proposed action [such as]
land, air, water, minerals, flora [and] fauna”51 but also “objects of
historic or aesthetic significance, existing patterns of population
concentration, distribution or growth, and existing community
or neighborhood character.52 For example, the New York courts
have interpreted this language to mean that any government
action that induces a significant change in population patterns
requires an environmental impact statement.53
This does not mean, however, that agencies may never
engage in environmentally harmful actions. Instead, agencies
must disclose the environmental impact of their actions in the
EIS,54 and must “minimize adverse environmental effects to the
maximum extent practicable.”55 In determining what is “prac-
ticable,” agencies may balance environmental concerns against
other public policies.56
On review, courts may not “weigh the desirability of any
action or choose among alternatives”57 but must ascertain
whether the EIS and the agency’s decision were arbitrary, capri-
cious, or otherwise infected by errors of law or procedure.58 As
a practical matter, this means courts generally uphold agency
decisions, especially after an EIS has been filed.59
III. SEQRA AND INFILL DEVELOPMENT
Infill development is development that occurs in already-
developed neighborhoods, often in cities or older suburbs.60
Greenfield development, by contrast, occurs on “pristine,
undeveloped land typically located in low density suburban
areas.”61 Both types of development sometimes require rezon-
ing or similar legal changes62 and may be subject to SEQRA.63
But SEQRA’s broad definition of “environmental impact” means
that urban infill projects will often require an EIS, even if they
create no impact upon the physical environment.64 Although the
statute does not expressly favor greenfield development, green-
field projects may nevertheless be less likely to attract the kind
of public controversy that forces agencies to draft an EIS.65
A. The Environmental Impacts of Infill
As noted above, SEQRA defines the term “environment” to
include “existing patterns of population concentration, distribu-
tion or growth, and existing community or neighborhood char-
acter.”66 SEQRA’s broad definition of the term “environment”
suggests that any infill development that adds a significant num-
ber of residences or businesses to an existing neighborhood will
usually require an EIS, since such development affects “existing
patterns of population” and “neighborhood character.”67
The New York Court of Appeals addressed this issue in the
1986 decision of Chinese Staff and Workers Association v. City
of New York (“Chinese Staff I”).68 In that case, a developer pro-
posed to build a high-rise condominium on a vacant lot in New
York’s Chinatown neighborhood.69 The city declined to draft
an EIS on the ground that the project would have no significant
environmental impact.70 Members of the Chinatown community
filed suit, alleging that the city’s decision was erroneous because
the city failed to consider “whether the introduction of luxury
housing into the Chinatown community would accelerate the
displacement of local low-income residents and businesses or
alter the character of the community.71 In response, the city
argued that this risk was “outside the scope of the [SEQRA]
definition of environment.”72
The court disagreed, writing that because SEQRAs
definition of “environment” encompasses “existing patterns
of population concentration, distribution or growth, and exist-
ing community or neighborhood character,”73 any effect that a
project might cause on “population patterns or existing com-
munity character . . . is a relevant concern in an environmental
analysis.”74
The court admitted that because the proposed construction
was on a vacant lot, it displaced no residents or businesses.75 But
the court nevertheless found that SEQRA required the city to
consider the risk of “long-term secondary displacement of resi-
dents and businesses in determining whether a proposed project
may have a significant effect on the environment.”76 Although
the court did not define the term “secondary displacement,”
other commentators use the term to describe the possibility that
new construction might make a neighborhood more desirable
and thus increase rents, which in turn might force some current
residents to move.77 Thus, the court suggested that the proposed
18 SUSTAINABLE DEVELOPMENT LAW & POLICY
new construction (combined with likely construction on other
nearby sites)78 might lead to such secondary displacement, and
that this possibility could require an EIS.
At a minimum, Chinese Staff I suggests that whenever new
development might make a neighborhood more valuable, thus
creating a risk of increased rents, the lead agency must consider
this fact in deciding whether to draft an EIS. More broadly,
Chinese Staff I implies that any change in existing “popula-
tion patterns” is an environmental impact under SEQRA and
thus if significant, requires an EIS. It logically follows that any
development that significantly increases neighborhood popula-
tion requires an EIS because new housing by definition affects
population patterns.
More recent New York appellate cases support this interpre-
tation of Chinese Staff I. For example, in Fisher v. Giuliani,79
the city allowed landowners within the city’s Theater District
to transfer development rights from
land containing several historic the-
aters to nearby parcels, thus allow-
ing the landowners to build taller
buildings on the latter parcels.80 The
lead agency refused to draft an EIS,
reasoning that the zoning change
would merely “accommodate the
projected demand for [office] space
[but] would not change the overall
demand,81 and would not affect the
neighborhood’s traffic patterns or
social composition.82
The court agreed, 83 writing that the opponents of the city’s
new rules “failed to provide any meaningful evidence that the
[change] . . . would be significant enough to spur development
beyond that which would in any event take place.”84 This lan-
guage suggests that an EIS was unnecessary precisely because
the rezoning was unlikely to spur development. It logically fol-
lows that if the city’s policies had increased development, the
court would have required an EIS.
In Chinese Staff I and Workers Association v. Burden
(“Chinese Staff II”),85 the New York courts also refused to
require an EIS, but emphasized that the rezoning at issue would
not increase population. In that case, the city of New York
rezoned a Brooklyn neighborhood and declined to draft an
EIS.86 A citizen group argued that the rezoning required an EIS
because the city “underestimate[d] the opportunities for market-
rate development . . . [and] the new types of businesses [caused
by rezoning].”87 The city disagreed, claiming that the rezoning
would lead to a net increase of only 75 housing units and thus
created no significant impact.88
The court held that the city’s finding of no significant impact
was rational for two reasons. First, the rezoning “was decreas-
ing, rather than increasing, the potential for development by
imposing building height limits.”89 Second, because “the [city]
projected an increase of only 75 units, it was [reasonable] to
conclude that the rezoning would not have any adverse socio-
economic impacts.”90
The Chinese Staff II court’s emphasis on the small num-
ber of added housing units and on the decreased potential for
development implies that any zoning decision that does add a
significant number of new businesses or housing units to a
neighborhood is likely to create significant impact and thus to
require an EIS under SEQRA—a rule consistent with Chinese
Staff I and Fisher.
B. Does Greenfield Development Usually Require an
EIS?
Because significant infill development by definition
increases the number of housing units and businesses in a
neighborhood, it is likely to require an EIS under SEQRA. By
contrast, greenfield development is further removed from exist-
ing residential neighborhoods. Although the law is not clear on
this point,91 it could be argued that such development is less
likely to affect population patterns or
neighborhood character. Therefore,
greenfield development might be
less likely to require an EIS than
infill development.
Even if this is not the case, in
practice SEQRA may burden infill
development more than greenfield
development. Infill development
by definition occurs in places with
many neighbors. And where there
are neighbors, there is often “Not in
My Back Yard” (“NIMBY”)92 resis-
tance to development.93 NIMBY
resistance occurs because residents of an existing neighborhood
may suffer any perceived costs from new development (e.g.,
increased traffic, changes in neighborhood look and feel) while
the benefits of new development, such as an increased supply
of housing, are citywide or regionwide.94 Dissatisfied neighbor-
hood activists thus have a strong motive to use SEQRA to delay
new development.95
Of course, residents of rural and suburban areas may share
such motives with urbanites. However, development in low-
density areas by definition occurs in places with fewer neighbors
than infill development. For example, if 1,000 people live within
a mile of Rural Development X and 20,000 people live within
a mile of Urban Development Y, the former development has
fewer neighbors—and where there are few neighbors, there are
few potential NIMBY issues.96 And where there are few poten-
tial NIMBY issues, there are fewer people who are likely to file
suit if the government refuses to file an EIS or complain that an
existing EIS is inadequate. Thus, even if the law treats infill and
greenfield development equally, SEQRA makes infill develop-
ment more difficult because, all other factors being equal, neigh-
borhood activists are more likely to generate SEQRA-related
litigation for infill sites.
“. . . in practice
SEQRA may burden
infill development
more than greenfield
development.
19WINTER 2014
IV. WHY SEQRAS BIAS IS
ENVIRONMENTALLY HARMFUL
It could be argued that SEQRAs bias against infill has little
relevance to public policy, either because (1) SEQRA rarely pre-
vents development that a city wants to approve or (2) infill devel-
opment is no more environmentally beneficial than greenfield
development. Neither argument justifies the status quo because
(1) SEQRA adds costs even to development that government
ultimately approves and (2) infill development produces less
driving and thus less pollution than greenfield development.
A. How SEQRA Makes Infill More Difficult
Admittedly, SEQRA does not prevent a municipality from
permitting development with significant environmental impact.
Because SEQRA allows government agencies to balance envi-
ronmental impacts against other social considerations, litigants
are rarely able to persuade courts to stop a project completely, as
opposed to delaying the project by requiring an EIS.97
Nevertheless, SEQRA imposes a significant burden upon
developers. For a developer, “time is money”98 because a devel-
oper will often be paying interest on a construction loan while
its project is being debated but will be unable to receive money
from buyers or renters until the project is actually built.99 Thus, a
developer suffers financially by waiting for government officials
to review environmental impact statements and similar docu-
ments, some of which include hundreds of pages of analysis.100
Both the EIS process and related litigation may take years
to complete.101 For example, in one recent case, a landowner
requested a zoning change in August 2008; the municipality
did not adopt a final EIS until November 2010; an opponent
of the project challenged the EIS a month later; and the case
was not decided until March 2012.102 In another more difficult
case, the environmental review
process began in late 2007, about
a year and a half before the final
EIS in 2009, and more than three
years before the final decision in
2011.103
In truly large-scale develop-
ments, the EIS project may take
more than five years. In 2005, a
New York City agency prepared an
environmental assessment form for
the Atlantic Yards project, which
plans to develop a 22-acre parcel
near downtown Brooklyn.104
The final environmental impact
statement was issued in 2006.105 But after years of litigation, a
New York appellate court ordered the government to prepare a
supplemental EIS in 2012—seven years after the environmental
review process began.106
In sum, even an environmental review process that ulti-
mately allows a project makes development more time-consum-
ing and thus more costly. And if, as noted above, SEQRA may
disproportionately affect infill development, SEQRA may make
infill especially costly.
B. Why Making Infill More Difficult Is
Environmentally Harmful
Given that all legislation has disproportionate impacts
upon someone, should we care whether SEQRA penalizes infill
development? Or to ask the question more precisely: is there any
environmental cost to penalizing infill as opposed to greenfield
development?
Already-developed areas, especially in urban cores, tend
to have more mass transit riders and fewer drivers than green-
field areas.107 This is because as a neighborhood becomes more
developed, it becomes more compact; that is, more people live
within walking distance of shops, jobs, public transit, and other
neighborhood destinations.108 By contrast, in areas with lower
density, very few people will live within a short walk of a bus or
train stop, making transit ridership low,109 which in turn disin-
clines transit agencies to serve such areas.110
It follows that more greenfield development means more
driving—and more driving means more pollution, since one-
third of U.S. greenhouse gas emissions come from automo-
biles.111 In addition, automobiles introduce a wide variety of
other dangerous pollutants, such as carbon monoxide, ozone,
and particulate matter.112 Public transit pollutes less than cars
because each additional rider on a bus or train adds no pollution,
while each additional driver adds some.113 It follows that because
infill development requires less driving, more infill development
means less pollution.
It could be argued that the positive effects of infill-induced
density are outweighed by the environmental harm caused by
increased traffic congestion. According to this argument, higher
density packs more people, and
thus more cars, into smaller spaces
making a city’s roads more con-
gested and polluted. 114
But as American cities and
suburbs have become less dense,
no corresponding reduction in
congestion has occurred. Between
1982 and 1997, population den-
sity in U.S. metropolitan areas
decreased by 15.7%.115 Out of
281 metropolitan areas116 only 16
became more densely populated
during this period.117 Nevertheless,
the average metropolitan area lost
more than twice as many hours per person to congestion in 1997
than in 1982 (33.8 hours, up from 14.4 in 1982).118
Some studies support the view that on balance, compact
development reduces pollution. A recent study sponsored by
the U.S. Department of Energy suggests that compact, transit-
oriented development reduces greenhouse gas emissions by
reducing driving. 119 In particular, the study found that:
“But as American
cities and suburbs have
become less dense,
no corresponding
reduction in congestion
has occurred.
20 SUSTAINABLE DEVELOPMENT LAW & POLICY
1. Doubling residential density, without more,
reduces household vehicle miles traveled by
five to twelve percent.120 If increased density
was accompanied by other pro-transit land use
policies and by improved public transit, driving
miles could be reduced by as much as twenty-five
percent.121
2. These reductions in driv-
ing would, in turn, reduce
greenhouse gas emis-
sions. If increased den-
sity and improved public
transit caused Americans
to drive twenty-five per-
cent fewer miles, U.S.
greenhouse gas emis-
sions could be reduced
by eight to eleven per-
cent by 2050.122
Similarly, Harvard econo-
mist Edward Glaeser and UCLA
economist Matthew Kahn recently conducted a study which
found that low-density, automobile-oriented places emitted more
greenhouse gases from transportation than more pedestrian
and transit-oriented places.123 For example, New York City, the
region with the highest use of public transit,124 emitted only
19,524 pounds of carbon dioxide (“CO2”), a major greenhouse
gas,125 per household from automobiles and transit users com-
bined126—the lowest amount among ten metropolitan areas
studied. By contrast, several auto-oriented, lower-density regions
emitted over 25,000 pounds of transportation-related CO2 per
household.127
Moreover, suburbs, which tend to be less compact and more
automobile-oriented,128 have significantly higher per-household
CO2 emissions from transportation. For example, New York’s
suburban households emitted over 3,800 more pounds of trans-
portation-related CO2 per household than did city residents.129
Thus, the alleged congestion-related benefits of low-density
greenfield development are apparently offset by the environmen-
tal harm caused by increased driving and resulting increases in
greenhouse gas emissions.
If, as suggested above, infill development reduces driving
and thus reduces pollution, and SEQRA discourages infill devel-
opment, it seems that SEQRA actually increases driving and the
resulting pollution.
Even under SEQRAs broad definition of the “environment,”
SEQRA is not environmentally friendly. In Chinese Staff I,
the court held that environmental impact includes “secondary
displacement”—displacement of a neighborhood’s existing
residents by higher rents.130 The court’s language suggests that
higher rents themselves are a harmful environmental impact.
But to the extent SEQRA discourages new residential devel-
opment, it reduces housing supply. And according to the law of
supply and demand, the less of something that is built, the higher
its price will be.131 Thus, SEQRA may actually increase rents
and other housing prices, thus creating environmental damage
by its own criteria.
V. SOLUTIONS
Of course, SEQRA is basically pro-environmental legisla-
tion and is sometimes used to delay projects with truly harmful
environmental consequences.132 On the other hand, SEQRA may
actually discourage environmen-
tally friendly infill development.
Can New York eliminate SEQRA’s
negative consequences without
eliminating SEQRA’s desirable
limits on development?
SEQRA can be made less
burdensome either through reforms
directly focused on the most envi-
ronmentally friendly types of infill
development or through reforms
addressing SEQRA as a whole.
Each avenue of reform will be
addressed in turn.
A. Infill Exceptions: Learning from California
In 2008,133 California amended its little NEPA statute,134
the California Environmental Quality Act (“CEQA”)135 to
streamline CEQA review for transit-oriented projects.136 The
state later issued regulations to implement these amendments.137
CEQA defines a “transit priority project” as one that is pre-
dominantly residential, provides a minimum density of at least
twenty dwelling units per acre, and is within a half mile of major
transit service, such as a bus or train with service intervals of no
more than fifteen minutes during peak hours.138 Such a project
is completely exempt from CEQA if it meets an extensive set
of requirements. In particular, the project must: (1) be no larger
than eight acres or two hundred dwelling units; (2) be served by
existing utilities; (3) have buildings fifteen percent more energy-
efficient than required under current law; (4) achieve twenty-five
percent less water use than the average household in its region;
and (5) provide one of the following: (a) five acres of open
space, or (b) a significant amount of low or moderate-income
housing, defined as providing 20% of its units to moderate-
income housing, 10% to low-income housing, or 5% to very
low-income housing.139 This exception to CEQA is so strict that
it is unlikely to be used significantly.140 In particular, the require-
ments of low-income housing reduce developer profitability, and
are thus unlikely to be used frequently by private developers.141
Moreover, the requirement of five acres of open space would
not be feasible in many urban locations, since buildings in cities
such as New York City are often surrounded by other buildings
rather than by open space.142
Transit priority projects that do not meet the requirements
for a complete exception143 still benefit from CEQA—govern-
ment must review such projects under a “sustainable commu-
nities environmental assessment” (“SCEA”),144 which is less
onerous than traditional SEQRA review.145 Under a SCEA, a
“On the other
hand, SEQRA may
actually discourage
environmentally
friendly infill
development.
21WINTER 2014
developer need not address potential growth-inducing impacts
of a project, nor need it address possible car and truck traffic
induced by the project.146 In addition, the developer need not
discuss the pros and cons of a lower-density alternative to the
project.147
But, the SCEA exception is highly limited; it only applies
if the project includes mitigation measures already incorpo-
rated in prior environmental impact statements, such as an EIS
related to the comprehensive plan of the community allowing
the project.148 Given the limitations that CEQA imposes upon
regulatory streamlining, New York would not make SEQRA less
burdensome merely by borrowing California law word-for-word.
However, New York could borrow parts of CEQA. In par-
ticular, I propose that New York: (a) borrow CEQAs definition
of transit priority projects, and (b) borrow CEQA’s provision
that developers of such projects need not address environmental
impacts related to growth, such as increased population or traf-
fic. Thus, SEQRA as amended would, in transit-oriented areas,
overrule the language of Chinese Staff I and Fisher that urban
growth justifies an EIS, on the ground that growth of areas well-
served by public transit is environmentally helpful rather than
environmentally harmful.
Byron Toma, an environmental and transit lawyer, criticizes
CEQA’s streamlining for transit priority projects on the ground
that “[b]uilding high-density housing without adequate transit
capacity and quality is a serious planning blunder.149 Toma sug-
gests that if transit agencies do not increase service as a mitiga-
tion measure, transit systems may become overloaded.150 This
argument should not prevent reform for two reasons. First, any
area with sufficient transit service to be eligible for a transit pri-
ority project by definition has a fairly significant level of transit
service. Second, if improved transit must come before density,
neither the transit nor the density may ever get built. In an area
where density is low and transit ridership is therefore already
lo w,151 transit opponents will argue that the density is not present
to support transit, and that transit should accordingly never be
expanded, even if it already exists.152 And where there is weak
transit service as a result of low density, compact development
will be even more unpopular: Opponents to development could
argue that, in the absence of transit, more density will only lead
to more congestion.153
In sum, limiting SEQRA review of transit-friendly develop-
ment to truly environmental concerns as opposed to concerns
related to population growth would be an environmentally
friendly policy, because it would contribute to steering growth to
infill sites served by public transit, thus increasing transit rider-
ship and reducing auto-related pollution.
B. More Aggressive Reforms
Stewart Sterk, a land-use law professor, proposes to reduce
the burden of SEQRA upon the housing market through two
reforms. First, Sterk proposes to make SEQRA less burdensome
by exempting local zoning decisions from SEQRA.154 The public
benefit of this proposal is that neighborhood activists would no
longer be able to delay new homes and businesses on essentially
nonenvironmental grounds, and the burden of SEQRA paper-
work and SEQRA-related litigation would thus be lifted from
the shoulders of local governments and developers.155 And
because, as explained above in Part III,156 SEQRA is probably
more burdensome for urban developers than for rural and sub-
urban landowners, this proposal probably would increase infill
and thus decrease pollution. On the other hand, this proposal
might prevent the public from discovering a few truly significant
environmental impacts that are uncovered through the SEQRA
process. Thus, it is unclear whether this proposal’s environmen-
tal benefits outweigh its costs.
Second, Sterk proposes157 amending SEQRA to exclude
socio-economic impacts from the statute’s definition of “envi-
ronment,” thus eliminating review of the social effects of
projects.158 Sterk reasons that disputes among socio-economic
impacts are political rather than technical, and that environmen-
tal review of such issues therefore adds nothing to the decision-
making process.159 If this proposal were adopted, SEQRA, like
NEPA, would only address a project’s effects upon the physical
environment.160
Like Sterk’s other proposal, this reform would make
SEQRA less burdensome and thus facilitate development gener-
ally. And like the California statute discussed above, it would
focus regulatory scrutiny on traditionally environmental impacts.
But unlike the California statute, Sterk’s proposal would not
be targeted towards transit-oriented development or even infill
development generally. Thus, the merits of Sterk’s proposal
may depend on the state’s priorities: does the state only value
transit-oriented development, or does it value regulatory relief
for all landowners? From a purely environmental perspective,
something resembling California law might be more desirable;
however, a broader reform might make housing more affordable
by facilitating both infill and greenfield development, which is
also a desirable goal.
VI. CONCLUSION
The purpose of SEQRA is to protect the environment by
requiring the government to consider the harmful environmental
impacts of its actions. But SEQRA in fact creates its own harm-
ful environmental impacts. Thanks to SEQRA, someone who
wants to build houses or apartments in an already-developed city
or inner suburb must sometimes spend years going through the
EIS process.
As noted above, greenfield development in low-density rural
areas and outer suburbs has fewer neighbors, and thus fewer pos-
sible opponents to development. It therefore appears that in rela-
tion to infill development, greenfield development may be less
likely to require an EIS or lead to litigation over the adequacy
of an EIS. Thus, SEQRA discourages infill development in New
York and encourages developers to either build on greenfield
sites or move to other states. Because greenfield development
typically leads to more driving and thus more pollution, SEQRA
may actually increase rather than decrease pollution.
SEQRA can be made more environmentally friendly in two
ways. At a minimum, the New York state legislature could target
22 SUSTAINABLE DEVELOPMENT LAW & POLICY
the most environmentally friendly projects for SEQRA relief by
limiting environmental review for compact developments near
public transit. More radical options would include encouraging
all development by exempting all zoning permits from SEQRA,
or by limiting SEQRA review to a project’s impacts upon the
physical environment.
Endnotes: How Environmental Review Can Generate Car-Induced Pollution:
A Case Study
1 See 42 U.S.C. §§ 4321-4370h.
2 See 42 U.S.C. § 4332(C).
3 See Elena Bryant, Innovation or Degradation? An Analysis of Hawaii’s
Cultural Impact Assessment Process as a Vehicle for Environmental Justice for
Kanaka Maoli, 13 ASIAN-PAC. L. & POLY J. 230, 265, 265 n. 209 (2011) (listing
states in footnote).
4 N.Y. ENVTL. CONSERV. LAW. § 8-0101 (McKinney 2013).
5 See William Fulton & Paul Shigley, Guide to California Planning 156 (3rd
ed. 2005) (“[M]ost state [little NEPA] laws . . . apply only to public develop-
ment projects.”).
6 See Stewart E. Sterk, Environmental Review in the Land Use Process: New
York’s Experience with SEQRA, 13 CARDOZO L. REV. 2041, 2042-43 (1992)
(explaining that unlike other states New York and California “require impact
statements not only for government-sponsored projects, but also for projects
that require government permits, and extend the EIS requirement beyond state
actions to actions taken by municipalities”); Daniel P. Selmi, Themes in the
Evolution of the State Environmental Policy Acts, 38 URB. LAW. 949, 956-57
(2006) (contrasting New York approach with that of other states). NEPA may
also require an EIS for private sector projects requiring government permits.
See Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1121 (9th Cir. 2005).
But NEPA is far less relevant to most private sector projects because zoning is
primarily a local issue rather than a federal issue. See San Remo Hotel v. City
& Cnty. of S.F., 545 U.S. 323, 347 (2005) (noting that state courts have more
experience than federal courts in dealing with zoning issues).
7 See Chinese Staff & Workers Ass’n v. N.Y.C., 502 N.E.2d 176, 180, (1986)
[hereinafter Chinese Staff I] (holding that SEQRA requires consideration of
“social or economic” factors as well as “physical environment”).
8 Id. at 180 n.7 (explaining that the scope of NEPA is limited to “natural or
physical environment”).
9 See John Watts, Reconciling Environmental Protection With the Need for
Certainty: Significance Thresholds for CEQA, 22 ECOLOGY L.Q. 213, 241 n.170
(1995) (“About half the states … require consideration of [socio-economic]
impacts.”); Sterk, supra note 6, at 2043 (Some “states define the environment to
embrace only natural and historical resources.”).
10 See Anne L. Hanson, Offshore Drilling in the United States and Norway:
A Comparison of Prescriptive and Performance Approaches to Safety and Envi-
ronmental Regulation, 23 GEO. INTL ENVTL. L. REV. 555, 559 (2011).
11 Id.
12 See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004).
13 See Emily M. Slaten, Note, “We Don’t Fish in Their Oil Wells, and They
Shouldn’t Drill In Our Rivers:” Considering Public Opposition Under NEPA
and the Highly Controversial Regulatory Factor, 43 IND. L. REV. 1319, 1324
(2010) (citing 40 C.F.R. § 1508.16).
14 Another alternative is to decide the action is covered by a “categorical
exclusion.” Id. at 1325. Categorically excluded actions are “routine agency
actions with traditionally non-significant environmental impacts that are
altogether exempted from the NEPA process.” Id. An individual federal agency
may designate types of agency action as categorically excluded. See 40 C.F.R.
§ 1508.4 (“Categorical Exclusion means a category of actions which do not
individually or cumulatively have a significant effect on the human environment
and which have been found to have no such effect in procedures adopted by a
federal agency.”).
15 40 C.F.R. § 1508.9(a)(1).
16 See 40 C.F.R. § 1501.4(e).
17 The Ninth Circuit requires an EIS even if federal action “may” degrade the
environment. Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d
1105, 1119 (9th Cir. 2000). However, the majority of courts require an EIS only
if a project will significantly affect the environment. See, e.g., Heartwood v. U.S.
Forest Serv., 380 F.3d 428, 430 (8th Cir. 2004); Greater Yellowstone Coal. v.
Flowers, 359 F.3d 1257, 1274 (10th Cir. 2004).
18 See 40 C.F.R. § 1501.7.
19 See 40 C.F.R. § 1502.9(a).
20 See 40 C.F.R. § 1502.9(b) (noting that in final EISs agencies “shall respond
to comments” and “discuss . . . any reasonable opposing view which was not
adequately discussed in the draft statement and shall indicate the agency’s
response to the issues raised”). See also id. at § 1503.4(a) (stating that a lead
agency “shall assess and consider comments . . . and shall respond by one or
more of the means listed below, stating its response in the final statement”).
21 42 U.S.C. § 4332(2). In addition, the EIS shall address any possible rela-
tionship between the action’s environmental impacts and long-term productivity,
and any irreversible commitment of resources the action may cause. Id.
22 See Vill. of Chestnut Ridge v. Town of Ramapo, 841 N.Y.S.2d 321, 332
(App. Div. 2007).
23 See Town of Amsterdam v. Amsterdam Ind. Dev. Agency, 945 N.Y.S.2d 434,
440 (App. Div. 2012) (explaining that the “primary purpose” of SEQRA is “to
ensure that the agency gives appropriate respect and due consideration to the
environment in deciding whether a proposed project should proceed”).
24 See Mark A. Chertok & Ashley S. Miller, Environmental Law: Develop-
ments in the Law of SEQRA, 2009, 60 SYRACUSE L. REV. 925, 925-26 (2010)
(clarifying that the statute “applies to discretionary actions by the State of New
York, its subdivisions or local agencies” including “direct agency actions, fund-
ing determinations, promulgation of regulations, zoning amendments, and the
granting of permits and similar approvals”).
25 Id. (SEQRA governs “zoning amendments”); Matter of Neville v. Koch, 79
N.Y.2d 416, 426, (1992) (“[R]ezoning is an ‘action’ subject to SEQRA.”).
26 See Paul D. Selver, The Public Review Process: Land Use Due Diligence
and Comments on Structuring the Deal to Shift Land Use and Environmental
Risks, in 12 COMMERCIAL REAL ESTATE INSTITUTE 903, 906-10 (2010) (noting that
subdivision approval, variances, and numerous other land use procedures are
subject to SEQRA).
27 See Edna Sussman et. al., Climate Change Adaptation: Fostering Progress
Through Law and Regulation, 18 N.Y.U. ENVTL. L. J. 55, 79 (2010); Sterk,
supra note 6, at 2045. Although the lead agency is technically responsible for
drafting the EAF, EIS, and similar documents, as a practical matter a developer
often drafts such documents, which in turn are used by the lead agency. See
Carolyn A. Zenk, New York State Environmental Quality Review Act, http://
www.carolynzenk.com/new-york-state-environmental-quality-review-act.html
(last visited Aug. 20, 2012).
28 Citizens Against Retail Sprawl v. Giza, 722 N.Y.S.2d 645, 648 (App. Div.
2001) (emphasis deleted) (quoting N.Y. COMP. CODES R. & REGS. 6, § 617.2(y)).
29 See N.Y. COMP. CODES R. & REGS. 6, § 617.2(a)-(c). See also Chinese Staff
I, 502 N.E.2d at 364 (“[W]hether an EIS is required … depends on whether
an action may or will not have a significant effect on the environment.”). If
the agency foresees significant environmental impacts but has an enforceable
commitment to mitigate those impacts, it may avoid an EIS by creating a “con-
ditioned negative declaration.” N.Y. COMP. CODES R. & REGS. 6, § 617.2(h). See
also Chertok & Miller, supra note 24, at 926.
30 Chertok & Miller, supra note 24, at 927.
31 Chertok & Miller, supra note 24, at 927. See also Jackson v. N.Y. State
Urban Dev. Corp., 67 N.Y.2d 400, 415, 494 N.E.2d 429, 435 (1986) (describing
the draft EIS process in more detail).
32 See Selver, supra note 26, at 904.
33 See Sterk, supra note 6, at 2045-46.
34 Sterk, supra note 6, at 2078 (providing examples of such “commitments”
which include “the use of construction materials or the occupation of land
area”).
continued on page 64