The historical development of SEQRA: March 15, 2001.

• Position: State Environmental Quality Review Act - NewYork - Panel Discussion

Director Patricia Salkin

I would like to introduce to you our moderator, Professor Sandra Stevenson. I personally owe Professor Stevenson a debt of gratitude for many things, but two things in particular. First, it was her vision, foresight, and energy that created the Government Law Center of Albany Law School (GLC). Had she not created and been committed to the GLC, I am positive that I would not be here today. Second, when ! came to Albany Law School as a student, one of the first things that I did was to find out about the GLC and about how I could become involved with it. ! suspect that in the first week of school, first-year law students have a lot of things on their minds: books, classes, and the balancing of new things. All ! wanted to do was find the Government Law Center and find Professor Stevenson. I am grateful for the fact that in my three years at Albany Law School she let me work with her, follow her, watch her, and learn from her. She has been a great mentor, and she taught me a lot. She has great intellect, and tremendous people skills. She created the Government Law Center and I hope that we are continuing to make her proud. Now, I am happy to turn over the podium to Professor Stevenson.

Professor Sandra M. Stevenson

I should leave. I will never get another introduction like that again. Thanks, Patty. I have to tell you, we at Albany Law School are so proud of Patty and so grateful for all the work that she has done. I cannot tell you how proud I am of her for building this center into what it is today. I can also tell you some stories about when she was a student here. The other thing I have to share with you is the memories I have as I look at everyone who has come back to celebrate the enactment of SEQRA. It is absolutely unbelievable.

Now, I know that our first speaker, Paul Bray, starts out his article by saying that the beginning of the environmental movement in New York came with the enactment of SEQRA. Well, Paul, I am a lot older than you. I go back to Chapter 140 of the Laws of 1970, (1) and thank God it was enacted because I got a job out of it. I was hired by a former professor of mine, Bernie Harvith. Wherever Bernie is today, I am sure he is with us enjoying this anniversary. Anyway, we went out and our charge was to draft an environmental conservation law. The legislature made us promise, under pain of death and all sorts of other things, that we would not make any substantive changes. I think they were afraid we would sneak something like SEQRA into that statute. But we did not. In fact, the only one of us--which included Mike Novak, our current clerk of the Appellate Division, Third Department--who got into trouble was me. I got a call one day after we submitted a bill. The legislative council asked that I present myself to them to discuss an allegation that I had made a substantive change. The issue involved a fee. Who was going to get the money? Was it the Health Department or the newly created Department of Environmental Conservation? Both had jurisdiction over this particular item. I took the common sense approach and just split the fee between the two departments. We sat there for twenty minutes hassling about whether it was a change and who should get the money. Finally, the counsel looked at me and asked, "How much money are we talking about?" I said $7, and that I had given $3.50 to one department and $3.50 to the other. Nevertheless, the bill was enacted.

There was no SEQRA in that first statute. We had to wait until 1976. That is what this illustrious panel will discuss--and we have the best. Not only do we have the most knowledgeable experts on SEQRA, but we also have the nicest.

Our first speaker is Paul Bray, a world-renowned expert in environmental and planning law. He has been recognized by all kinds of entities and honored for his contributions in making our world a better place. It is an honor for me to introduce Paul to you.

Paul Bray

I am a person who loves anniversaries and I have engaged in a lot of celebrations over my time: centennials, bi-centennials, tri-centennials. I have been pushing for the quadra-centennial that is coming up for Henry Hudson's travel up the river named after him. This is the first anniversary celebration of SEQRA, and it is special because this is the twenty-fifth anniversary. I know that on centennials, I sometimes feel like a one-hundred-year-old man, but I was not really there. This one I was. In certain respects I feel a little like Rip Van Winkle. Thinking back, I remember very distinctly things that happened in 1974 and 1975, and then I think that maybe I fell asleep and just woke up and will someday discover what happened in the interim period. I think we are going to find--I hope--a very useful exercise here, both in getting a better grasp and understanding of what the circumstances were in the 1970s, and also in determining what the intent and hope was for this law, and how this law--this very monumental law--evolved over a twenty-five-year period and became as dominant as it is today.

I have some mixed feelings about the fact that we are here celebrating this on the twenty-fifth anniversary, which I will further explain. I hoped that SEQRA was transitional. It was born in a transitional time between a Republican and Democratic administration, and that is probably how SEQRA got enacted--because of that little window of transition. (2) Some of us had intended SEQRA to be a transition to real comprehensive planning at the local, regional, and state level--guiding us into a planning regime. That has not happened.

Let me provide a little history, a little background on how SEQRA came to be and what some of the issues were at the time of its enactment. At that time and up until a year or so ago, I was a bill drafter with the State Legislative Bill Drafting Commission. It is a major bi-partisan commission in the legislature that serves both houses and both parties. It is sometimes hard to understand how a drafter can work under those circumstances. For example, in the 1970s, I had the interesting opportunity to draft for Assemblyman Peter Berle, who went on to become chairman of the Environmental Conservation (ENCON), head of Audubon, and other organizations, and Assemblyman Jerry Solomon, who went on to become head of the Rules Committee in the U.S. House of Representatives and who was a shade more conservative than Peter. The Adirondack Park Agency Act (3) was being debated at that time and it was like a revolving door. Each day those two fellows would come into my office. Peter would have a new amendment to try to strengthen the shoreline restrictions and Jerry would come up with a new way of trying to undermine the whole thing. And there I was, drafting for both sides.

On the other hand, I had the privilege over most of my tenure to be assigned, amongst the sixteen or eighteen members to whom I was assigned, to the Environmental Chairman in the Assembly. There were some remarkable gentlemen who held that position, including Assemblyman Herbert Posner, and I am sorry that he is not here today. As I will explain, he was a "class act" and deserves the tribute for SEQRA. After Herb, there were Assemblyman G. Oliver Koppell and Assemblyman Maurice D. Hinchey, and so on. That was where I played a role.

About a week or two ago I was on a panel with Assemblyman Pete Grannis talking to a delegation of Dutch legislators. Having mentioned the silver anniversary of SEQRA and describing our current environmental law situation, Pete responded that if that law or bill came before the legislature today, it would not pass. There are so many more lobbyists and everything is much more contentious. So, we ought to think about where we were and where we are now.

SEQRA's birth came out of the 1969 enactment of both National Environmental Policy Act (NEPA) and the California "mini-NEPA." (4) In 1971, Assemblyman Posner introduced a bill to adopt NEPA policies and procedures for New York State. (5) From there the dance began, lasting until 1975, between two types of bills: one introduced by the Senate and the other by the Assembly, both under Republican control. The Senate advanced a Public Project Impact Statement Bill and the Assembly focused on a Private Project Impact Statement Bill. (6) Essentially, the Private Impact Statement Bill, through government reviewing and permitting projects, provides jurisdiction. (7) Yet, the issue is still not resolved. Instead of highlighting environmental projects that have a significant impact, they tried to be definitive. The bills referred to projects that sometimes involved five acres, and other times they set the benchmark at five hundred acres. (8) Other differences included the number of dwelling units and square footage for commercial purposes. (9) They wanted to find a very well-defined threshold, which obviously was very difficult for the Legislature to do. Sandy has written a law review article on this, which pretty much covers the topic. If you want to get a more in-depth look, I suggest you go to the ALBANY LAW REVIEW and look at Sandy's article. (10)

In some ways, the Public Project Bill had a little more success. Both houses passed it at one point in the early 1970s, only to be vetoed by Governor Rockefeller. (11) As long as Governor Rockefeller was in office, I think Impact Statement Bills were destined not to have much success. The Governor was not about to allow public projects to be impeded in any great way, shape, or form. Regardless, it was an interesting dance. In fact, when he vetoed the Public Impact Statement Bill, he described it as "wastefully duplicative." (12)

This brings us up to 1974 when Assemblyman Posner came to my office and said, "Paul, we have these two bills. Each house is pushing it's own bill. It's not going anyplace. Is there an alternative, is there another way?" NEPA came to mind, but I had not really thought about it. I did a little research and...