New York Law Review

Tag: Environmental Impact Assessment

  • Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219 (2007): Discretion in Requiring Supplemental EIS After Project Changes

    Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219 (2007)

    A lead agency has discretion under SEQRA to determine whether a supplemental environmental impact statement (SEIS) is necessary when project changes, new information, or altered circumstances arise after the initial EIS, and a court should only overturn that decision if it is arbitrary or capricious.

    Summary

    This case addresses the extent of a planning board’s discretion in deciding whether to require a second Supplemental Environmental Impact Statement (SEIS) after a residential development project had been in planning for nearly 20 years. The Court of Appeals held that the Planning Board of the Town of Southeast acted within its discretion when it determined that a second SEIS was not required, even after significant environmental and regulatory changes. The Court emphasized that judicial review of such agency determinations is limited and that courts should not substitute their judgment for that of the agency unless the decision is arbitrary, capricious, or unsupported by evidence.

    Facts

    Glickenhaus Brewster Development, Inc. sought approval for a residential development in the Town of Southeast in 1988. The proposed development, called the Meadows at Deans Corners, spanned approximately 309 acres and included 104 homes. The project raised environmental concerns due to its location within the Croton Watershed, which supplies New York City with drinking water. Over several years, the Planning Board reviewed various environmental impact statements. In 2003, a court annulled the conditional final approval, directing the Board to re-evaluate the need for a second SEIS due to significant changes, including expanded wetlands acreage, tightened phosphorous regulations, and the designation of the Croton Watershed as a Critical Resource Water.

    Procedural History

    1. 1988-1991: Glickenhaus submits DEIS, FEIS, DSEIS, and FSEIS.
    2. February 25, 1991: The Board issues a SEQRA findings statement.
    3. August 10, 1998, and June 10, 2002: The Board granted preliminary and conditional final approval.
    4. February 3, 2003: Supreme Court annuls conditional final approval, remanding for a determination on the need for a second SEIS.
    5. April 14, 2003: The Board determines a second SEIS is unnecessary.
    6. February 23, 2004: Conditional final approval is granted again.
    7. The Appellate Division reversed the Supreme Court’s decision, holding that a second SEIS was required. The Court of Appeals then reversed the Appellate Division.

    Issue(s)

    Whether the Planning Board of the Town of Southeast acted arbitrarily and capriciously when it determined that a second SEIS was not necessary to address project and regulatory changes that arose after the filing of the initial SEQRA findings statement.

    Holding

    No, because the Board took a hard look at the relevant areas of environmental concern and provided a reasoned elaboration for its determination that the changes did not present significant adverse environmental impacts necessitating a second SEIS.

    Court’s Reasoning

    The Court of Appeals emphasized that a lead agency’s decision regarding the necessity of a SEIS is discretionary. The relevant SEQRA regulations state that the lead agency "may require a supplemental EIS." The Court reiterated the limited scope of judicial review in SEQRA cases, stating that courts should only determine whether the agency (1) identified the relevant areas of environmental concern, (2) took a “hard look” at them, and (3) made a “reasoned elaboration” of the basis for its determination. The Court found that the Board had satisfied these requirements. The Board considered the increased wetlands acreage, the tightened phosphorous regulations, and the Critical Resource Water designation. It relied on reports from the Town’s wetlands consultant and the developer’s engineering consultant, concluding that the changes would not result in significant adverse environmental impacts. The Court noted that the Board’s requirement of a technologically advanced sewage treatment facility in its 1991 findings statement anticipated many of the later regulatory changes. The Court also rejected the argument that the Board improperly deferred its SEQRA responsibilities by making the SEIS determination prior to the completion of various permitting processes, stating "Provided that a lead agency sufficiently considers the environmental concerns addressed by particular permits, the lead agency need not await another agency’s permitting decision before exercising its independent judgment on that issue." The court emphasized that SEQRA is to be implemented with minimum delay. The court concluded that the Board’s determination was supported by the evidence and was not arbitrary or capricious.

  • Coca-Cola Bottling Co. of New York, Inc. v. Board of Estimate of City of New York, 72 N.Y.2d 674 (1988): Environmental Review Responsibility

    Coca-Cola Bottling Co. of New York, Inc. v. Board of Estimate of City of New York, 72 N.Y.2d 674 (1988)

    Under the State Environmental Quality Review Act (SEQRA), the governmental entity with principal responsibility for approving a proposed action must also be the body that determines whether the action may have a significant effect on the environment; municipalities cannot insulate the ultimate decision-making body from considering environmental factors.

    Summary

    Coca-Cola sued the Board of Estimate, arguing it violated SEQRA by allowing the Department of Environmental Protection (DEP) to determine the environmental impact of Con-Agg’s recycling business. The Court of Appeals held that the Board of Estimate, as the entity responsible for approving the project, was also responsible for assessing its environmental impact. The court reasoned that SEQRA’s core policy is to integrate environmental considerations into governmental decision-making, and this policy is violated when the ultimate decision-maker is insulated from considering environmental factors.

    Facts

    Con-Agg Recycling Corp. operated a concrete recycling business on a site owned by New York City. The urban renewal plan did not authorize this use, so Con-Agg sought an amendment and to purchase the site. The Board of Estimate was responsible for amending the plan and selling the site. The proposed actions were subject to environmental review under SEQRA, implemented in New York City by Mayoral Executive Order No. 91, which designated DEP as a lead agency for environmental review. DEP issued a conditional negative declaration, concluding the recycling activities would not significantly affect the environment if Con-Agg took certain noise abatement steps. The Board of Estimate then approved the sale and amendment.

    Procedural History

    Coca-Cola, a neighbor of Con-Agg, commenced an Article 78 proceeding, arguing that the Board of Estimate, not DEP, was the responsible agency under SEQRA. The trial court agreed and nullified the Board of Estimate’s actions. The Appellate Division affirmed, and the Court of Appeals affirmed as well.

    Issue(s)

    Whether, under SEQRA, the Board of Estimate, as the governmental entity with principal responsibility for approving a proposed action, could delegate the determination of the environmental impact of the project to the Department of Environmental Protection.

    Holding

    No, because SEQRA requires the governmental entity with principal responsibility for approving a proposed action to also be the body which determines whether the action may have a significant effect on the environment.

    Court’s Reasoning

    The court emphasized SEQRA’s policy of integrating environmental considerations directly into governmental decision-making. The statute mandates that social, economic, and environmental factors be considered together. The “lead agency” concept is central to this policy. The lead agency is the entity principally responsible for carrying out, funding, or approving the proposed action. This agency must determine whether the action may have a significant effect on the environment. A key determination the lead agency makes is if an Environmental Impact Statement (EIS) is necessary. The court rejected the argument that DEP served only as an advisor, upholding the lower court’s factual determination that DEP made the final decision on the conditional negative declaration.

    The court also rejected the argument that Executive Order No. 91’s designation of permanent lead agencies was a permissible variance of SEQRA’s requirements. While municipalities can develop their own SEQRA procedures, those procedures cannot transgress SEQRA’s spirit. Here, the City’s implementation of SEQRA allowed the Board of Estimate to be insulated from consideration of environmental factors. The court emphasized that the determination of environmental significance is not merely a sterile, objective assessment of data, but a policy decision governed by reasonableness. Removing this determination from the agency principally responsible for approving the proposal violates the statute’s policy. The court quoted from the statute explaining that the decision maker must find that, “consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided”.

    The court acknowledged that lead agencies often need to draw on the expertise of other agencies, and SEQRA encourages this. However, the final determination must remain with the lead agency principally responsible for approving the project. To the extent Executive Order No. 91 altered or diminished that responsibility, it was invalidly applied.