Judicial review under SEQRA: a statistical study.

• Author: Gerrard, Michael B.
• Position: State Environmental Quality Review Act - New York

INTRODUCTION

Nearly 2000 judicial opinions were issued under the State Environmental Quality Review Act ("SEQRA") (1) between its enactment in 1975 and the end of 2000. (2) Almost 700 were issued from 1990 (when the author began undertaking an annual review of SEQRA cases for the New York Law Journal) through 2000. (3) These numbers are large enough to serve as a basis for a statistically valid review of case outcomes.

This article is divided into five parts. Part I presents statistics on the SEQRA cases. Part II reviews the history of how the Court of Appeals has decided SEQRA cases. Part III lists some of the issues that have been litigated over the years and breaks them down into the resolved issues, the open issues yet to be resolved, and the persistently gnawing issues that are not likely to be resolved. Part IV identifies the legal nemeses of the various participants in the SEQRA process. Part V attempts to distill the caselaw under SEQRA into one sentence.

1. STATISTICS ON SEQRA CASES

   Table I herein presents an analysis of the court decisions issued under SEQRA from January 1990 through December 2000--a period of eleven years. There were 697 decisions during this period. (4) These are all the cases known to the author; they include all reported decisions, and many unreported decisions. There may well be other unreported decisions not included in this enumeration.

   Several conclusions are apparent from these numbers. The number of decisions per year is remarkably constant. The average is sixty-three decisions per year, and it has never varied by more than plus or minus thirteen decisions. (5)

   The number of final environmental impact statements ("EISs") dropped after 1993, (6) while the number of cases challenging EISs did not. (7) This means that the percentage of EISs that led to court decisions increased significantly, from about 7% during the first half of the 1990s to about 15% during the second half of that decade.

   Unfortunately the New York State Department of Environmental Conservation (NYSDEC) stopped counting the number of negative declarations (i.e., decisions that no EIS is required for a particular action) in 1994. (8) During the first half of the 1990s, however, roughly 2.4% of negative declarations led to court decisions. (9)

   The single best indicator of whether the plaintiff (usually, but not always, a project opponent) or the defendant (always at least one government agency, and often one or more project applicants) was more likely to win a particular SEQRA case was whether an EIS had been prepared in that case. Plaintiffs won 11% of the cases in which an EIS had been prepared, whereas plaintiffs won 28% of the cases in which no EIS had been prepared. (10) In other words, plaintiffs in SEQRA cases wherein an EIS had not been prepared won almost three times more often than plaintiffs in SEQRA cases wherein an EIS had been prepared. (11) There was no great change in these percentages over the decade, nor were there any obvious trends.

   This last observation may be useful in predicting the outcome of future SEQRA cases. If an EIS has been prepared, plaintiffs apparently start out with about a one-in-ten chance of winning. On the other hand, if there has been no EIS, plaintiffs tend to have closer to a one-in-three chance of winning. Taking these odds into account, one can then look at the specific facts of a particular case to form a judgment about whether that case is going to have a significantly greater or smaller chance of success than these average percentages would indicate.

2. NEW YORK COURT OF APPEALS DECISIONS

   Table II herein lists all the decisions issued by the Court of Appeals under SEQRA from 1981 (the year of the first such decision (12)) through 2000. (13) There are a total of forty-four cases listed below. (14) Pro-environmental plaintiffs won eight of these cases; these victories were almost entirely in the 1980s. (15) There was one plaintiffs' victory in 1997--Kahn v. Pasnik, (16) affirming an appellate division decision that a negative declaration was wrongly issued under some fairly egregious facts. (17) Other than that, plaintiffs have not won a SEQRA case in the Court of Appeals since Village of Westbury v. Department of Transportation (18) in 1989.

   The plaintiffs' victories in the 1980s included four of the iconic pro-plaintiff SEQRA cases: Chinese Staff and Workers Ass'n v. City of New York, (19) concerning socioeconomic effects; (20) Save the Pine Bush, Inc. v. City of Albany, (21) on cumulative impacts; (22) Coca-Cola Bottling Co. of New York v. Board of Estimate, (23) on eligibility for lead agency status; (24) and Village of Westbury v. Department of Transportation, (25) on segmentation. (26)

   All of the most important Court of Appeals SEQRA decisions since 1989 have been victories for governmental defendants: The Society of the Plastics Industry, Inc. v. County of Suffolk, (27) on standing; (28) Long Island Pine Barrens Society v. Planning Board, (29) on cumulative impacts; (30) and Merson v. McNally, (31) on relaxed standards of procedural compliance. (32)

   Few of these cases were even close; of the forty-four Court of Appeals SEQRA decisions since 1981, all but six were unanimous. (33) It is not immediately apparent why environmental plaintiffs have had such a drought in the Court of Appeals since 1989. The impression one gets from these decisions is of a court that is enormously deferential to administrative decisions, at least when regulatory--as opposed to constitutional--questions are at stake.

3. LITIGATED ISSUES

   A number of issues have appeared frequently in SEQRA litigation. Some of these issues have been conclusively decided; other issues are still open, while still others are likely never to be resolved. These issues are categorized below, together with citations to leading decisions that embody any prevailing rule.

   1. Resolved Issues

      1. Standard of Review

         The New York courts grant considerable deference to the technical decisions of administrative agencies. One prominent example is the 1990 Court of Appeals decision Akpan v. Koch, (34) a challenge to an urban renewal project in Brooklyn. (35) Opponents presented voluminous expert reports urging that the EIS analysis was deeply flawed. (36) The court would have none of it; the defendant City of New York had studied the issues and reached a reasoned conclusion. (37) It was not for the courts to second-guess the City's judgments. (38) This deference is the major reason why, as just noted, plaintiffs seldom win cases in which EISs have been prepared.

      2. Procedural Compliance

         Over the years, several cases had declared that strict procedural compliance was required under SEQRA, and that even minor procedural errors would lead to nullification of a decision. (39) This doctrine, however, was never firmly established in practice, and it was largely cast aside in 1997 in Merson v. McNally, (40) in which the Court of Appeals authorized, under some circumstances, a conditioned negative declaration for a Type I action (41) (an action more likely than others to require an EIS) despite an EIS regulation that seems to prohibit such a declaration. (42) This decision signaled that minor procedural irregularities will be forgiven, especially if the public has been given full opportunity to participate in the discussions. Absolutely strict procedural compliance continues to be the domain of the Election Law. (43)

      3. Role of SEQRA in Decision-Making

         When SEQRA review establishes the presence or absence of an impact, that decision is binding, at least on the lead agency. For example, in WEOK Broadcasting Corp. v. Planning Board, (44) an EIS had concluded that a proposed radio broadcasting tower would not have a negative aesthetic impact. (45) The lead agency--a town planning board--then disapproved the tower on grounds of its potential aesthetic impact. (46) The Court of Appeals found this inconsistency between the EIS and the agency's decision to be impermissible and upheld WEOK's application. (47)

      4. Lead Agency Selection

         Until the late 1980s, there was considerable uncertainty over which agencies were eligible to serve as lead agencies in the SEQRA process. (48) The lead agency has a crucial role; it decides whether an EIS is necessary, and, if so, what the EIS must contain, whether a draft EIS is adequate, and what the final EIS should say. (49) The City of New York designated two permanent co-lead agencies for all of its SEQRA matters, but in 1988 in Coca-Cola Bottling Co. of New York v. Board of Estimate (50) the Court of Appeals annulled this practice and declared that only "involved agencies"--that is, agencies that have an actual decision-making role, as opposed to an advisory role--may be the lead agency. (51)

      5. Role of Expert v. Amateur Opinion

         SEQRA controversies frequently become battles of experts, but two rules have clearly emerged: one expert followed by the lead agency beats any number of experts by opponents, (52) and non-expert views expressing general opposition count for nothing. (53)

      6. Aesthetics Counts

         Aesthetics have firmly been established as a valid basis for municipal regulation, and a project subject to discretionary review can, under the right circumstances, be rejected because it is ugly. (54)

   2. Open Issues

      1. Standing for Shared Exposure

         In 1991, in The Society of the Plastics Industry, Inc. v. County of Suffolk, (55) the Court of Appeals created the doctrine that, in order to have standing to bring a SEQRA case, a plaintiff must not only be affected by the challenged action; she must also be affected differently than the public-at-large. (56) This doctrine has the potential to shield from review many "classic" environmental impacts--such as air and water pollution--that equally affect everyone nearby. New York's doctrine of standing in environmental cases has no parallel in either federal standing law or the laws of most other states, (57) and thus makes New York one of the most...