Thinking globally and acting locally: reflections about the possible impacts of "globalization" in the evolution of SEQRA.

• Author: Markell, David L.
• Position: State Environmental Quality Review Act - New York

INTRODUCTION

New York's landmark 1975 "look before you leap" statute, the State Environmental Quality Review Act (SEQRA), (1) the focus of this edition of the Albany Law Review, (2) was a product of the times in which the state considered and, ultimately, enacted SEQRA into law. During the 1970s, concerns in the United States about environmental issues, and about the existing laws' failure to address these issues adequately, were at an unprecedentedly high level. (3) These cultural forces led to the enactment of what one leading environmental casebook has termed the "Federal Regulatory Infrastructure," (4) beginning with the signing into law of the federal National Environmental Policy Act (NEPA) on January 1, 1970, and arguably culminating with the enactment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980. (5) These forces were in evidence in New York State during this period as well; they contributed to the enactment of considerable environmental legislation--including SEQRA, which was enacted right in the middle of this extraordinary decade-long burst of legislative activity. (6)

SEQRA shares its roots with federal environmental legislation in another, more immediate, way as well. SEQRA owes a great deal to its federal counterpart, NEPA, adopted just a few years beforehand, as well as to the laws of other states. As the seminal two-volume treatise on SEQRA, Environmental Impact Review in New York, notes, "SEQRA was derived in large measure from ... [NEPAl." (7)

In this article I consider the possibility that SEQRA's future is likely to be shaped by developments beyond the borders of New York State, including the phenomenon of "globalization." (8) I first discuss the possibility that globalization may affect the content of substantive environmental norms in New York, as contained in SEQRA and other domestic environmental laws. I then consider whether the forces of globalization are likely to impact the State's environmental procedures, as contained in SEQRA and other domestic laws. Finally, I discuss why these forces are more likely in the future to influence domestic environmental laws and practices than has occurred to date.

1. STATE SUBSTANTIVE ENVIRONMENTAL REQUIREMENTS

   Almost twenty-five years ago, the Supreme Court concluded that the "mandate" of SEQRA's federal counterpart, NEPA, is "essentially procedural." (9) While many commentators have bemoaned the course that the caselaw has taken (10)--the fact remains that courts routinely apply NEPA to require analysis of environmental impacts. The courts have not insisted that the conclusions of the analysis dictate the outcome of the NEPA process. As the Supreme Court stated in its 1989 decision in Robertson v. Methow Valley Citizens Council, (11) "it is now well settled that NEPA itself does not mandate particular results." (12)

   Some prominent observers have claimed that to some extent SEQRA departs from NEPA on this front, suggesting that SEQRA is not merely a disclosure statute. As one commentator put it, in a phrase cited with approval by the New York Court of Appeals, SEQRA "imposes far more `action-forcing' or `substantive' requirements on state and local decisionmakers than NEPA imposes on their federal counterparts." (13)

   There is at least the possibility that developments in international law norms may affect the "action-forcing" nature of SEQRA, as it is implemented with other domestic laws. To provide one example, various commentators contend that international environmental law prohibits one country from causing significant environmental harm to another. Indeed, some commentators have characterized this "good neighbor" notion as "the cornerstone of international environmental law." (14) This commitment to "good neighborliness" is embodied in the 1972 Stockholm Declaration as well as the 1992 Rio Declaration, which was signed by many of the countries in the world, including the United States. (15) Principle 21 of the 1972 Stockholm Declaration, (16) for instance, provides as follows:

   State have in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. (17)

   Others suggest that the "obligation" not to cause transboundary harm is more myth than reality. Oscar Schachter's statement captures this perspective: "[t]o say that a state has no right to injure the environment of another seems quixotic in the face of the great variety of transborder environmental harms that occur every day." (18) More generally, Professor Thomas Merrill devoted a 1997 law review article to "ask[ing] why regulation of transboundary pollution remains so underdeveloped." (19)

   The salient point, for our purposes, is that there is a possibility that one feature of globalization will be the increasing development of norms of international law. (20) The follow-up question is, what will be the consequences if this growing body of international law diverges from domestic law--e.g., if international law norms move in a direction seemingly favored by Principle 21 of the Stockholm Declaration and Rio Principle 2, (21) or in a direction that undermines domestic environmental norms, as many are concerned some of the trade regimes do? (22)

   At least three consequences seem plausible. First, it is possible that domestic laws such as SEQRA and other state laws that apply to proposed projects will continue to prevail. International norms will carry little if any weight. In this case, development of such norms is likely to have minimal affect on the future shape of SEQRA and other domestic environmental laws.

   A second possibility is that there will be movement to harmonize domestic laws with international principles. Interest in pursuing such harmonization exists in many quarters. As one commentator puts it:

   Globalization has increased the degree and intensity of international economic exchange by several orders of magnitude. With this comes a demand for rules to govern these exchanges. This includes ... a desire by actors to harmonize different national regulatory schemes. (23)

   Movement in this direction may create pressure to conform the standards embodied in SEQRA and other domestic environmental laws to the expectations established under international law.

   A third, not unrelated, option is that parallel processes will be created. For example, for projects that may have significant adverse transboundary impacts, or that have trade-related consequences covered by one or more international trade regimes, SEQRA and other domestic environmental laws may not necessarily be determinative. Instead, alternative or parallel processes may be created to consider such projects, or perhaps the extent to which the government's action in connection with such projects conforms to international law. The latter has already happened to some extent under the international trade regimes. Chapter 11 of the North American Free Trade Agreement (NAFTA), allows an investor to bring a case before a tribunal appointed under that Chapter, alleging that a country or "subfederal" government has taken action that, inter alia, violates a NAFTA norm. (24) An interesting example is the Methanex NAFTA Chapter 11 filing. Methanex, a Canadian corporation and the world's "largest producer and marketer of methanol, the principal ingredient of [methyl tertiary butyl ether] MTBE," (25) brought an action under Chapter 11 against the United States and California. Methanex alleged that a California Executive Order that required the removal of MTBE, a gasoline additive, because of concerns about MTBE pollution, violated NAFTA because the Order was, inter alia, "tantamount to expropriation." (26) Methanex sought damages of $970,000,000. Thus, the existence of an international forum, available to hear challenges to domestic environmental actions on the ground that they are inconsistent with international norms, may raise issues concerning the sustainability of decisions made under domestic laws, and even the possibility of sanctions potentially to be imposed on regulators who apply their domestic laws to produce results deemed inconsistent with international law. (27)

   The emergence of international environmental norms with "bite," in short, creates the possibility that these international norms may affect SEQRA's content or the legitimacy of actions taken under it and other domestic laws, and even the public fisc.

2. STATE ENVIRONMENTAL PROCEDURES

   A second type of "pressure" may come on the "process" end of SEQRA. The notion that it is important to "look before you leap"--through advance consideration of the environmental impacts of proposed projects--has found fertile soil in which to spread globally, as well as within the United States. (28) Increasingly, there is interest in ensuring that there are processes in place that will allow consideration of, and attention to, activities that may cause significant transboundary and other environmental impacts that extend beyond the jurisdiction of the source country. (29)

   This is certainly true with respect to pollution in North America. The three North American countries, the United States, Canada, and Mexico, have explicitly acknowledged that pollution does not stop at national or other political boundaries, (30) and have committed to work together to address transboundary impacts. (31) For example, in section 10(7) of the North American Agreement on Environmental Cooperation (NAAEC)(32)--sometimes known as the environmental side-agreement to NAFTA--the United States, together with Canada and Mexico, recognize the significance of transboundary...