New York Law Review

Tag: Lead Agency

  • Gordon v. Rush, 100 N.Y.2d 236 (2003): Estoppel of Subsequent SEQRA Review After Prior Negative Declaration

    Gordon v. Rush, 100 N.Y.2d 236 (2003)

    When a lead agency under SEQRA issues a negative declaration after a coordinated review, other involved agencies with notice of the process are generally bound by that determination and cannot conduct their own subsequent SEQRA review unless they timely challenge the lead agency’s determination.

    Summary

    Oceanfront property owners sought permits from the Town of Southampton and the DEC to install bulkheads. The DEC, as lead agency, issued a negative declaration after a coordinated SEQRA review. The Town’s Coastal Erosion Hazard Board of Review, after initially not objecting, later sought to conduct its own SEQRA review and issued a positive declaration requiring an EIS. The Court of Appeals held that the Board was bound by the DEC’s negative declaration because it had notice of the coordinated review and failed to raise objections. The Board’s attempt to conduct a subsequent, independent SEQRA review was thus unauthorized.

    Facts

    Storms caused erosion to beaches in Bridgehampton, NY, prompting oceanfront property owners (petitioners) to request permits to install steel bulkheads. They applied to both the Town of Southampton (through its Coastal Erosion Hazard Area (CEHA) Administrator) and the Department of Environmental Conservation (DEC). The CEHA Administrator was the liaison with DEC. The DEC had jurisdiction because the bulkheads were within tidal wetlands. Initially, the Town Administrator requested the DEC act as lead agency. After initial concerns, the petitioners modified their applications, moving the bulkheads landward of the primary dune.

    Procedural History

    The DEC issued negative declarations and wetlands permits. The Town CEHA Administrator denied the coastal erosion permits because the modified proposal violated the Town Code. Petitioners appealed to the Town’s Coastal Erosion Hazard Board of Review. The Board decided to conduct its own SEQRA review, leading to a positive declaration. Petitioners then commenced a CPLR Article 78 proceeding and declaratory judgment action (Gordon v Matthew). The Supreme Court compelled the Board to review the Administrator’s denial but annulled the Board’s authority to conduct a new SEQRA review, remanding for further proceedings. On remand, the Board again declared itself lead agency and issued a positive declaration, leading to a second Article 78 proceeding. The Supreme Court annulled the Board’s resolution, and the Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the Board’s issuance of a positive declaration requiring the preparation of a DEIS (Draft Environmental Impact Statement) is ripe for judicial review.

    2. Whether the Town of Southampton Coastal Erosion Hazard Board of Review was bound by the prior negative declaration issued by the Department of Environmental Conservation (DEC) acting as lead agency in a coordinated State Environmental Quality Review Act (SEQRA) review.

    Holding

    1. Yes, because the issuance of the positive declaration directing petitioners to prepare a DEIS, involving the expenditure of time and resources, after petitioners had already been through the coordinated review process and a negative declaration had been issued by the DEC as lead agency constitutes a final administrative action ripe for judicial review.

    2. Yes, because the Board had notice of the DEC’s coordinated SEQRA review process and failed to raise objections during that process. The Board is therefore bound by the DEC’s negative declaration.

    Court’s Reasoning

    The Court reasoned that the Board’s action was ripe for review because it imposed an obligation on the petitioners to prepare a DEIS, which constitutes a concrete injury. The Court distinguished this case from situations where a positive declaration is merely a step in the decision-making process, emphasizing that the DEC had already conducted a coordinated review and issued a negative declaration, in which the Board had an opportunity but failed to participate. Requiring the petitioners to expend time and resources on a DEIS after the negative declaration inflicts actual harm. The Court emphasized the need for a “pragmatic evaluation” of whether the agency action inflicts “an actual, concrete injury.”

    On the merits, the Court found that the Board was bound by the DEC’s negative declaration. The DEC properly identified the involved agencies and conducted a coordinated review. The Court noted that the Administrator was the primary liaison with the DEC and received copies of the DEC’s communications. The Board failed to advise the DEC of any concerns during the SEQRA process, as required by regulations. “The Board did not make its objections known until after it received copies of the negative declarations and tidal wetlands permits issued by the DEC.”

    To challenge the DEC’s issuance of the tidal wetlands permits and negative declaration, the Board should have commenced a timely Article 78 proceeding. Because the Board was bound by the DEC’s negative declaration, its decision to conduct its own SEQRA review was unauthorized. The court affirmed that the DEC took the necessary “hard look” at “the relevant areas of environmental concern” (Matter of Merson v McNally, 90 NY2d 742, 751 [1997]).

  • 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.