The Ultimate Challenge to SEQRA

New York’s highest court has required “strict, not substantial, compliance” with SEQRA’s procedures outlined in the environmental laws and regulations,⁵ as “departures from SEQRA’s procedural mechanisms thwart the purposes of the statute.”⁶ Further, the public’s opportunity to participate in the environmental review process is embodied in SEQRA.⁷ As noted by one commentator, SEQRA takes governmental land use decisions out of the proverbial “smoke filled room and into the light of public awareness and participation.”⁸

Those who would argue that SEQRA already provides authority to look at issues related to GHGs and climate change may point to the broad umbrella that the courts have stated is part of the law. For example, the New York Court of Appeals has ruled that SEQRA guarantees that decision-makers “‘will identify and focus attention on any environmental effects of a proposed action, that they will balance those consequences against other relevant social and economic considerations, minimize adverse environmental impacts to the maximum extent practicable, and then articulate the bases for their choices.”⁹

Just What Is Climate Change?

In determining whether SEQRA permits or requires that an environmental review consider “climate change,” that term should first be defined. According to the U.S. EPA Web site:

Climate change refers to any significant change in measures of climate (such as temperature, precipitation, or wind) lasting for an extended period (decades or longer). Climate change may result from:

• natural factors, such as changes in the sun’s intensity or slow changes in the Earth’s orbit around the sun;

• natural processes within the climate system (e.g., changes in ocean circulation);

• human activities that change the atmosphere’s composition (e.g., through burning fossil fuels) and the land surface (e.g., deforestation, reforestation, urbanization, desertification, etc.).¹⁰

Those who are of the belief that climate change is not coming but, rather, is already here, want municipalities and the state to use the authority already existing under SEQRA to require that approving agencies mandate that the impacts of GHGs, which are viewed as a major contributing factor to climate change, be mitigated before projects are approved.

Authority to Consider GHG Impact

Often when municipalities review large projects, the environmental impact statement (EIS) reflects that there will be increases in traffic or increases in other activities that will generate additional GHGs. Yet, just as often, the EIS will do little more than mention that the activities will result in an increase in GHGs with no attempt to reduce their impacts.

Although there are those who argue SEQRA grants no authority to review GHGs as part of the environmental review of a project, even the current regulations provide some basis for lead agencies wishing to examine their impacts. The current long form EAF, incorporated in the SEQRA regulations under 6 NYCRR 617.20, provides some ability to begin to address the impacts of GHGs, at least from larger projects.

In Part 1 of the EAF the applicant is asked, in item 21: “[w]ill the project result in an increase in energy use?” Likewise Part 2 of the EAF, at item 7, asks: “[w]ill proposed action affect air quality” and item 16 asks, “[w]ill proposed action affect the community’s sources of fuel or energy supply?” Therefore, where there is a large enough project that

(a) increases energy use,

(b) affects air quality, and/or

(c) affects the community’s fuel or energy supply,

the door is open to consider GHGs as part of a SEQRA review.

DEC Initiatives

Significantly, the DEC has not waited for changes in the rules to begin requiring that projects examine the impacts of GHGs. In several recent instances, the agency has clearly signaled that it believes the SEQRA regulations already provide the tools necessary to begin addressing GHGs.

Within the last year, the DEC has begun requiring that the impact of GHGs and other issues related to climate change be addressed in environmental reviews where it is the lead agency. There are several current examples of the DEC adopting the scope for an EIS that mandates that the EIS for a particular project must very specifically provide detailed information on matters directly related to climate change, and more specifically, the generation of GHGs.

On Dec. 5, 2007, the DEC Commissioner, in settling a dispute over a lead agency designation, cited GHGs as one of the significant reasons for designating the DEC as lead agency. The project in question, commonly referred to as Kingwood, is located in parts of three different towns in rural Sullivan County. The project proposes 1,000 detached single family homes and 1,300,000 square feet of commercial development ranging over 1,845 acres. After the towns could not agree on which one of them should be the lead agency, the Commissioner of DEC was brought in, pursuant to the SEQRA regulations,¹¹ and issued a decision finding that the size, scope and potential regional and statewide impacts of the project warranted that DEC act as lead agency.

In setting forth its reasons for taking over as lead agency, the Commissioner noted the DEC’s “broad mandates encompassing protection of air and water resources and quality generally” and raised the issue of GHGs resulting from a project of this nature, noting in part: “[r]emote, ‘ex-urban’ subdivisions such as the one proposed here may contribute disproportionately to accelerated generation of greenhouse gases, based on their inherently long daily driving distances to jobs or services for residents, equally long drives by potential customers of the commercial area, and basically car-dependent layout.”

Subsequently, in February 2008, the DEC adopted a final scope for the Belleayre Mountain Ski Area project that requires an extensive examination of the production of GHGs from every aspect of the construction and operation of the project. Encompassing portions of two towns in Ulster and Delaware Counties, the Belleayre Mountain Ski Area project was described in the positive declaration issued by the DEC, in November 2007, as: