New York Law Review

Tag: Supplemental EIS

  • Bronx Committee for Toxic Free Schools v. New York City School Constr. Auth., 20 N.Y.3d 146 (2012): Supplemental EIS for Post-Remediation Monitoring

    Bronx Committee for Toxic Free Schools v. New York City School Constr. Auth., 20 N.Y.3d 146 (2012)

    An agency must supplement its Environmental Impact Statement (EIS) to describe remedial measures essential to understanding a project’s environmental impact when that showing is unrebutted.

    Summary

    The New York City School Construction Authority (Authority) sought to build a school campus on a contaminated former railroad yard. After participating in the Brownfield Cleanup Program and preparing an EIS, the Authority was challenged for failing to include long-term maintenance and monitoring plans for its environmental controls in the EIS. The Court of Appeals held that the Authority had to supplement its EIS. Because the Authority did not dispute the petitioners’ claim that these measures were essential to protecting the site’s occupants, the court found that a supplemental EIS was required to address the maintenance and monitoring protocols, despite the Authority’s participation in the Brownfield Program and submission of a site management plan to the Department of Environmental Conservation (DEC).

    Facts

    The Authority planned to construct a school campus on a site that was formerly a railroad yard in the Bronx. The site was significantly contaminated, requiring cleanup. The Authority participated in the Brownfield Cleanup Program administered by the DEC. As part of this program, the Authority submitted a Remedial Action Work Plan (RAWP) that included engineering controls like vapor and hydraulic barriers. The DEC conditionally approved the RAWP, requiring the Authority to develop a site management plan for DEC approval, which would detail the operation and maintenance of the implemented remedies. The Authority then prepared a draft and final EIS but did not include a description of long-term maintenance and monitoring procedures in either version.

    Procedural History

    Petitioners initiated a CPLR article 78 proceeding challenging the Authority’s SEQRA compliance, focusing on the absence of a long-term maintenance and monitoring protocol in the EIS. Supreme Court ordered the Authority to prepare a supplemental EIS. The Authority moved for reargument and renewal, arguing that the site management plan obviated the need for a supplemental EIS. Supreme Court granted reargument but adhered to its previous ruling. The Appellate Division affirmed. The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether the Authority violated the State Environmental Quality Review Act (SEQRA) by failing to describe in an EIS the methods it adopted for long-term maintenance and monitoring of the controls it used to prevent or mitigate environmental harm, when the Authority did not dispute that such information was essential to understanding the project’s environmental impact.

    Holding

    Yes, because the Authority did not dispute the petitioners’ showing that the long-term maintenance and monitoring measures were essential to protecting the site’s occupants from dangerous contaminants, and therefore, the EIS was incomplete without this information.

    Court’s Reasoning

    The Court of Appeals emphasized that an EIS must include a description of the proposed action, its environmental impact, and mitigation measures (ECL 8-0109[2]). The court’s role is to assess whether the agency identified relevant environmental concerns, took a “hard look” at them, and provided a “reasoned elaboration” for its determination, citing Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 (1986). The court stated that the Authority did not argue that the maintenance and monitoring measures were minor details but failed to dispute petitioners’ claims that the measures were “essential” to protecting occupants. The court rejected the Authority’s arguments that it reasonably postponed detailing these measures until after the EIS filing and that the DEC’s approval of the site management plan within the Brownfield Program satisfied the requirement. The court reasoned that DEC regulations allow for supplemental EIS filings when subjects are “not addressed or inadequately addressed in the EIS,” including when changes are proposed for the project, newly discovered information arises, or circumstances change (6 NYCRR 617.9 [a][7]). The court affirmed that SEQRA and the Brownfield Program serve distinct purposes, with SEQRA designed to ensure that primary environmental concerns and mitigation efforts are described in a publicly available EIS subject to public review and comment. The court concluded that despite other outreach efforts, the Authority needed to take the additional step of filing a supplemental EIS. As the Court explained, “SEQRA is designed to assure that the main environmental concerns, and the measures taken to mitigate them, are described in a publicly filed document identified as an EIS, as to which the public has a statutorily-required period for review and comment.”

  • 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.