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
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. & POL’Y 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-
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
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. INT’L ENVTL. L. REV. 555, 559 (2011).
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
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://
(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
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