Seeking the spirit of SEQRA from beneath the paperwork.

• Author: Monahan, Todd Gregory
• Position: State Environmental Quality Review Act - New York

1. INTRODUCTION

   Although most often associated with the urban expanses of Manhattan and the other four New York City boroughs, New York State, rife with natural beauty, is a study in contrast, where the world's largest metropolis lies only hours away from remote hinterland. (1) Those who easily forget the state's predominantly rural, wild essence need only look to the Adirondacks. "New York's Adirondack Park, one million acres larger than Yellowstone, Yosemite, Grand Canyon, Glacier, and Olympic national parks combined, is the last substantially undeveloped area of its size in the Northeast United States." (2) In this region of New York alone, there are "2,300 lakes and ponds, 1,200 miles of river, and over 30,000 miles of brooks and streams." (3) Like the Adirondack region, all of New York is rich in history, tradition, and wild, natural beauty. (4)

   Social and economic phenomena in New York are intimately linked to the state's physical environment. (5) Moreover, environmental quality is crucial to the enjoyment of recreational activities. (6) To secure, defend, and preserve these natural blessings, the New York State Legislature enacted the State Environmental Quality Review Act (SEQRA). (7) Its purpose was, and remains, to declare a state policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human and community resources important to the people of the state. (8)

   SEQRA represented "a fundamental shift in New York's administrative jurisprudence" and has been analogized to an "environmental bill of rights." (9) At the heart of the statute is, a procedural framework designed to incorporate the consideration of environmental factors into the existing planning, review and decision-making process of State, regional and local government agencies at the earliest possible time so as to minimize, to the greatest degree possible, the adverse environmental consequences of any project that is approved. (10) This requirement--that the potential environmental impact of a project must be assessed substantively during its early stages--enables SEQRA, at least in theory, to be a powerful action-forcing environmental law in New York. (11)

   In Board of Cooperative Educational Services of Albany-Schoharie-Schenectady-Saratoga Counties v. Town of Colonie, (12) the Third Department, observed that "`literal compliance with both the letter and spirit of SEQRA is required [in agency decision-making] and substantial compliance will not suffice.'" (13)

   In practice, however, it is apparent that New York courts observe only half of this sentiment at best. (14) Contrary to SEQRA's conservationist spirit, courts have declined to look beneath the sufficiency of the required paperwork to the underlying substantive environmental issues. (15) Some environmental law practitioners claim that judges, relying on the judicial rule that courts cannot overturn agency decisions embodied in environmental impact statements (EISs) unless they find that agency decisions are arbitrary and capricious, (16) have routinely rubberstamped EISs regardless of appreciable substantive deficiencies. (17) Such a policy does not embody the serious legal commitment to environmental protection that SEQRA was enacted to provide.

   This comment deals with an alarming trend in SEQRA jurisprudence: specifically, how courts have emphasized procedural compliance with SEQRA while ignoring its substantive mandate, (18) and the dangers of such judicial treatment. Part I introduces the comment and its thesis. (19) Part II compares SEQRA to its federal predecessor, the National Environmental Policy Act (NEPA), (20) emphasizing SEQRA's substantive mandate vis-a-vis NEPA's almost solely procedural nature. (21) Part III deals with SEQRA's treatment in New York courts, and how two distinct lines of jurisprudence--one procedural and one substantive--originated from several important cases. (22) Part IV directly addresses how judicial treatment of SEQRA favors procedural compliance over substantive compliance. (23) Finally, Part V offers suggestions on how to make SEQRA and the SEQRA process more consistent with the environmentalist spirit in which it was created. (24)

2. COMPARISON BETWEEN THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) AND SEQRA

   The National Environmental Policy Act (NEPA) became law in January of 1970, (25) heralding the beginning of a period of active governmental interest and participation in conservation. (26) NEPA embodied the federal government's commitment to "`use all practicable means and measures ... to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans.'" (27) Subsequent federal caselaw has reaffirmed that commitment. In Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, (28) the District of Columbia Circuit held that although NEPA allows discretionary substantive decisions, its procedural provisions require strict compliance. (29)

   SEQRA became law five years after NEPA, and was greeted by the environmental community as holding even more promise than its federal predecessor. (30) Patterned after NEPA, SEQRA is similar to its parent statute in several important ways. (31) Both statutes share similar environmental goals, and stipulate that environmental considerations should be integrated into existing and future statutes. (32) Both statutes, while recognizing that environmental considerations must be upheld to the fullest extent practicable, tacitly indicate that concessions to social and economic concerns are appropriate. (33) The principal operational vehicle of both statutes is the environmental impact statement (EIS). (34) Both statutes concern review of agency "`actions,'" defined in both cases as "not only physical projects, such as the construction of a road or the extension of a runway, but also the development of policies, regulations, and procedures." (35)

   Despite these similarities, the statutes are also very different in several important ways. The principle difference between SEQRA and NEPA, which lies at the heart of the issues explored by this comment, is that the former explicitly requires agencies to bear environmental considerations in mind when arriving at all decisions. (36) Thus, SEQRA's substantive component far outweighs that of NEPA. (37) While NEPA only "indirectly" requires that federal agencies weigh environmental considerations into their policies, and develop decision-making methodology, (38) SEQRA contains a substantive component compelling environmental compliance in agency decision-making. (39) Accordingly, "[t]he tenuousness of the connection in NEPA between the overall objective of the statute and actual decisions has turned [NEPAl into a set of essentially procedural requirements." (40) In Strycker's Bay Neighborhood Council, Inc. v. Karlen, (41) the U.S. Supreme Court in a per curiam opinion, observed:

   once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot "`interject itself within the area of discretion of the executive as to the choice of the action to be taken.'" (42)

   By contrast, while SEQRA does not require courts to conduct a de novo review of every agency decision with environmental ramifications, (43) SEQRA does require that agencies not only create environmentally sound policy, but also implement such policies in reaching their substantive decisions. (44) Thus, while NEPA aspires to create environmentally sound decision-making, SEQRA carries that aspiration one step further, to the creation of environmentally sound policy.

   1. The Requirement of the EIS

      To understand the nature of SEQRA, an examination of the differences between NEPA and SEQRA is helpful. These differences are most apparent with respect to four issues: the requirements of the EIS, the author of the EIS, the content of the EIS, and the public involvement of the EIS.

      SEQRA casts a broader jurisdictional net than NEPA. (45) NEPA requires federal agencies to prepare EISs when contemplating "major Federal actions" that are likely to affect "the quality of the human environment" significantly. (46) SEQRA, though, not only applies to administrative agencies but also to legislative bodies at the state and local levels. (47) SEQRA has three basic mandates. First, state and local agencies must review statutes, administrative regulations, and governmental procedures to determine if they are all consistent with SEQRA; if not, the agency must develop measures to bring the errant statute, regulation, or procedure into conformity with SEQRA. (48) Second, agencies must prepare an EIS before proceeding with any project that could affect the environment. (49) Third, agencies must make decisions, which diminish, or outright prevent, environmental degradation to the extent possible given competing social and economic policy. (50) Not only must agencies comply procedurally with SEQRA, but they must also select courses of action that will in fact minimize or avoid adverse environmental effects. (51) Moreover, SEQRA's threshold for when an EIS is required is much lower than NEPA's. (52) NEPA applies only to "`major' Federal actions," thus insulating small federal projects or those with minimal federal involvement from the NEPA review process. (53) SEQRA, on the other hand, applies to "any" government action regardless of its breadth and scope. (54) Additionally, SEQRA contemplates both a larger spectrum of environmental impact and a more expansive notion of the concept of "environment" than does NEPA. (55) In as much as both NEPA...