The substantive reach of SEQRA: aesthetics, findings, and non-enforcement of SEQRA'S substantive mandate.

• Author: Caffry, John W.
• Position: State Environmental Quality Review Act - New York

1. INTRODUCTION

   New York's State Environmental Quality Review Act ("SEQRA"), Environmental Conservation Law Article 8, (1) and its implementing regulations at 6 NYCRR Part 617 (2) were enacted in order to ensure that environmental impacts receive appropriate consideration in state and local government decision-making. (3)

   This article will first briefly describe the substantive reach of SEQRA. A discussion of SEQRA's regulation of aesthetic impacts will follow. The article will then conclude by discussing the frequent failure of SEQRA to achieve its substantive purpose due to government agencies' unwillingness to fully apply SEQRA and the courts' hesitancy to enforce it.

2. THE SUBSTANTIVE REACH OF SEQRA

   SEQRA, enacted by the New York State Legislature in 1975, (4) states that "[i]t is the intent of the legislature that all agencies ... regulate ... activities so that due consideration is given to preventing environmental damage." (5) SEQRA imposes a substantive duty on agencies to "use all practicable means" to achieve this as well as SEQRA's other goals, and to "act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects, including effects revealed in the environmental impact statement process." (6)

   This policy of avoiding adverse environmental impacts is one of the principal differences between SEQRA and its "parent" statute, the National Environmental Policy Act (NEPA), which is purely procedural. (7)

   1. The SEQRA Process

      SEQRA applies to all state and local agencies in New York. (8) Each agency must review any proposed action (9) that comes before it (10) to determine whether or not it may have a significant adverse environmental impact. (11) If the agency determines that one or more significant adverse effects may occur, then the project proponent must prepare an environmental impact statement (EIS) before a decision to proceed with the action can be made. (12) If the agency finds that no significant adverse effects will occur, then it adopts a "negative declaration" and the SEQRA process comes to an end. (13) As discussed further in Section III below, at the close of the EIS process, the agency must make findings as to the action's environmental impacts and must determine, prior to approving the action, which measures should be taken to avoid or minimize those impacts. (14)

      No single agency administers SEQRA. While the New York State Department of Environmental Conservation (DEC) is responsible for promulgating the SEQRA regulations (15) and has certain administrative functions--such as accepting copies of all EISs for filing, (16) publishing SEQRA notices, (17) and resolving certain procedural disputes (18) --each agency is responsible for implementing SEQRA with regard to all actions in which the agency is involved. (19)

   2. SEQRA Powers--Permit Conditions

      To meet the statutory mandate of avoiding or minimizing the adverse environmental impacts of an action, agencies have a number of substantive powers under SEQRA, including imposing permit conditions, approving an alternate project or denying the application. (20) These powers are carried out through the EIS process described above. (21)

      Typically, agencies avoid or reduce adverse impacts either by imposing permit conditions on project approvals, or by selecting an alternative form for the project in lieu of the preferred design of the project sponsor. (22) Conditions attached to an approval "must be practicable and reasonably related to impacts identified in the EIS or the conditioned negative declaration." (23) Agencies may also impose conditions on projects for issues that are normally outside the scope of the agency's jurisdiction. (24) For example, if a project comes before the DEC for an air pollution control permit, and it appears that the project may have significant visual impacts, then the DEC must address those impacts through the SEQRA process even though the DEC air pollution control program has no visual impact statutes or regulatory scheme.

      The authority to address environmental impacts outside the scope of an agency's statutory powers is also held by agencies other than the DEC. (25) The DEC SEQR Handbook (26) states that all lead agencies have this authority, making it clear that it is not limited to the DEC. (27) The SEQR Handbook also opines that lead agencies (28) have broader authority to address environmental impacts than other involved agencies, but fails to specify what the source of this restriction upon involved agencies might be. (29) The SEQR Handbook also states that such conditions cannot infringe on the jurisdiction of other agencies. (30)

   3. SEQRA Powers--Denial of Applications

      When a proposed project's impacts cannot be mitigated adequately, SEQRA requires the agency to deny the application, even if there is no express authority governing those impacts in the statute or regulations which subjected the project to the agency's jurisdiction in the first place. (31) This authority has theoretically existed for many years, but only recently has it begun to show up regularly in the reported cases. (32) It appears that only the DEC may have exercised this power with any frequency before the 1990s. (33)

      In 1985, the appellate division upheld the denial of a rezoning application on SEQRA grounds, following the preparation of a generic. EIS. (34) The facts of that case, however, did not readily lend themselves to a broader application of the principle that an application may be denied under SEQRA, since the rezoning of a parcel of land is generally considered to be a discretionary act. (35) A few years later, The SEQR Handbook, published in November 1992 by the DEC, stated that agencies do have the authority to deny applications under SEQRA. (36)

      In April 1992, the Court of Appeals held in WEOK Broadcasting Corp. v. Planning Board (37) that an application for zoning approval for construction of a broadcast tower might be denied on SEQRA visual impact grounds. (38) But in that case, the record on such impacts was not adequate to support denial, as the applicant's expert had demonstrated that visual impacts initially anticipated would not occur. (39) This holding supported a broad reading of SEQRA's authority, but the reversal of the Planning Board's decision left some doubt as to whether or not the courts would actually uphold SEQRA-based denials. (40)

      In the late 1990s, the law moved towards a clearer rule that an application could be denied under SEQRA due to significant adverse environmental impacts. A 1996 supreme court decision, East Coast Development Co. v. Kay, (41) and a 1998 Appellate Division, Third Department, decision, Wal-Mart Stores Inc. v. Planning Board, (42) each upheld, respectively, the denial of site plan approval -- due to adverse visual impacts -- of proposed Wal-Mart stores. The denials in both cases relied in part on SEQRA and in part on local zoning ordinances. (43) Additionally, two other Appellate Division cases decided around the same time also upheld denials of a zoning application based on combined SEQRA and local zoning ordinance grounds. (44) Similarly, a 1999 federal court decision upheld the denial of an application for three communications towers on SEQRA visual impact grounds. (45)

      Any lingering doubt that SEQRA gives agencies broad authority to deny applications was resolved by the 2000 decision of the Appellate Division, Third Department, in Lane Construction Corp. v. Cahill. (46) Lane Construction expressly stated that an application may be denied solely in reliance on SEQRA, regardless of whether there are grounds for denial in the statute which requires the permit application to be filed. (47)

      In Lane Construction, a DEC administrative law judge (ALJ) found that a proposed mining project (48) would have significant adverse impacts, including visual and noise impacts. (49) Nevertheless, in his hearing report, the ALJ recommended that the application be approved by the Commissioner, since these impacts had been mitigated to the maximum extent practicable. (50) The Deputy Commissioner (acting on behalf of the Commissioner), disagreed with the A.L.J. in the DEC's final decision on the application, holding that while the impacts had been mitigated, the mitigation was still not adequate, and that "[i]n light of the foregoing, I am unable to make the necessary findings under SEQRA, and must deny the application." (51)

      The applicant then brought a proceeding under CPLR Article 78 seeking to overturn the denial. (52) The petition included a claim that because the regulations promulgated by the DEC under the Mined Land Reclamation Law (MLRL) did not include any specific visual impact regulations, the application could not be denied due to the project's visual impacts. (53) The Third Department rejected this argument, holding that SEQRA alone provided adequate authority for the denial of the application, regardless of whether there was authority to do so in the DEC's permit program regulations. (54) Specifically, the court upheld the Deputy Commissioner's findings "that despite the proposed mitigation efforts, unacceptable environmental impacts would occur" as a proper basis for denial of the application under SEQRA. (55)

      When it is possible that SEQRA requires the denial of an application, the unmitigable adverse environmental impacts of the action must first be weighed and balanced against the demonstrated public need for the project. (56) If the adverse impacts outweigh the public need, then the application will be denied. (57) Lane Construction is likely to make this weighing process all the more crucial in the future, as agencies must now decide whether the remaining unmitigated environmental impacts warrant denial of an application. In turn, all parties to the SEQRA process will have to place more emphasis on the question of need for the project.

3. SEQRA...